| Matter of Maliq M. |
| 2008 NY Slip Op 01215 [48 AD3d 1251] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Maliq M., an Infant. Monroe County Department ofHuman Services, Respondent; Vidal W., Appellant. |
—[*1] Daniel M. DeLaus, County Attorney, Rochester (Paul N. Humphrey of counsel), forpetitioner-respondent. William H. King, Jr., Law Guardian, Rochester, for Maliq M.
Appeal from an order of the Family Court, Monroe County (John J. Rivoli, J.), enteredNovember 3, 2006 in a proceeding pursuant to Family Court Act article 6. The order, amongother things, terminated respondent's parental rights.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent father appeals from an order terminating his parental rights onthe ground of abandonment. The record belies the contention of the father that he was notallowed to present a defense. A child is abandoned if the parent "evinces an intent to forego hisor her parental rights and obligations as manifested by his or her failure to visit the child andcommunicate with the child or agency, although able to do so and not prevented or discouragedfrom doing so by the agency" (Social Services Law § 384-b [5] [a]), and "[t]he subjectiveintent of the parent, whether expressed or otherwise, unsupported by evidence of the foregoingparental acts manifesting such intent, shall not preclude a determination that such parent hasabandoned his or her child" (§ 384-b [5] [b]). Here, the father was precluded only frompresenting evidence concerning the period prior to the six-month period before the petition wasfiled (see Matter of Lindsey B., 16AD3d 1078 [2005]), and his incarceration is not a defense to the abandonment petition (see Matter of Annette B., 4 NY3d509, 514 [2005], rearg denied 5 NY3d 783 [2005]; Lindsey B., 16 AD3d at1078). The evidence presented at the hearing established that, in the six months prior to the filingof the petition, the father had little or no contact with the child, and we conclude on the recordbefore us that the father failed to rebut the presumption that he abandoned his child (seeLindsey B., 16 AD3d at 1078). Present—Scudder, P.J., Martoche, Peradotto, Pine andGorski, JJ.