| Matter of Fonchasity H. |
| 2008 NY Slip Op 10442 [57 AD3d 1525] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Fonchasity H. and Another, Infants. Monroe CountyDepartment of Human Services, Respondent; Terry H., Appellant. |
—[*1] Daniel M. Delaus, Jr., County Attorney, Rochester (Paul N. Humphrey of counsel), forpetitioner-respondent. Anthony Leavy, Law Guardian, Rochester, for Fonchasity H. and Fondeshia H.
Appeal from an order of the Family Court, Monroe County (Marilyn L. O'Connor, J.), enteredJuly 11, 2007 in a proceeding pursuant to Social Services Law § 384-b. The order terminatedrespondent'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 with respectto his two daughters upon a finding that he had abandoned them (see Social Services Law§ 384-b [4] [b]; [5]). Contrary to the contention of the father, petitioner met its burden ofestablishing by clear and convincing evidence that he failed to visit his daughters or to communicate withthem or petitioner, although able to do so, during the six-month period immediately preceding the filingof the petition (see Matter of Annette B.,4 NY3d 509, 513-514 [2005], rearg denied 5 NY3d 783 [2005]; Matter of Tonasia K., 49 AD3d 1247[2008]). A caseworker for petitioner testified at the fact-finding hearing that the father, who wasincarcerated, failed to communicate with or to contact petitioner within the statutory period, and that thechildren indicated to her that they had not spoken with their father during that period. Contrary to thefurther contention of the father, his incarceration during the statutory period did not relieve him of hisresponsibility to communicate with the children or petitioner (see Matter of Anthony T., 35 AD3d 1201 [2006], lv denied 8NY3d 809 [2007]; see also Matter of MaliqM., 48 AD3d 1251 [2008], lv denied 10 NY3d 710 [2008]; Matter of Lindsey B., 16 AD3d 1078[2005]). We conclude that Family Court properly determined that it was in the best interests of thechildren to terminate the father's parental rights and to free them for adoption (see generally Matterof Anthony T., 208 AD2d 985, 986 [1994], lv denied 85 NY2d 801 [1995]).
We have considered the father's remaining contention and conclude that it is without merit.Present—Scudder, P.J., Smith, Centra and Fahey, JJ.