Howard R., Appellant. v. << (1999)

In this proceeding to terminate respondent's parental rights, Family Court determined that respondent abandoned his two children for a period of six months immediately prior to the date on which the petition was filed (see, Social Services Law § 384-b[4][b] ).  Although we agree with that determination, we note that the court failed to make findings essential to its determination (see, CPLR 4213[b] ).  The record is adequate, however, to enable us to make the necessary findings (see, CPLR 5712[c] ).

 It is undisputed that respondent failed to contact either child for the six-month period from May 5 through November 5, 1997.   Further, respondent has failed to rebut the presumption that he had the ability to visit and communicate with the children during that period (see, Social Services Law § 384-b[5][a] ).   His incarceration for a portion of the relevant six-month period did not prevent him from contacting either child by telephone or letter (see, Matter of Commissioner of Social Servs. v. Nelson R., 226 A.D.2d 630, 641 N.Y.S.2d 684;  Matter of New York Foundling Hosp. v. Consuela G., 221 A.D.2d 343, 344, 633 N.Y.S.2d 371, lv. dismissed 88 N.Y.2d 998, 649 N.Y.S.2d 370, 672 N.E.2d 595), or, upon release on bail, from visiting or otherwise communicating with the children.   Respondent contends that financial hardship precluded his visitation and that he did not communicate with the children because he did not want to upset them because he could not visit them.   We note, however, that respondent resided with his mother in Westchester County, New York, for almost half of the six-month period and was employed for a portion of that time.   The record does not support his contention that petitioner discouraged or prevented him from visiting or communicating with the children.   Thus, we conclude that respondent has “evince[d] an intent to forego his * * * parental rights and obligations” (Social Services Law § 384-b[5] [a] ).

 We reject respondent's contention that the court should have conducted a dispositional hearing.   The decision whether to conduct a dispositional hearing is within the court's discretion (see, Matter of Israel R., 200 A.D.2d 498, 499, 606 N.Y.S.2d 639), and respondent has failed to show any reasonable basis for conducting one.   The younger child has been in foster care almost since birth, and the older child has been in foster care since just after his first birthday.   The same foster parents have been caring for the children throughout such placement and wish to adopt them.   Further, the record establishes that respondent may be incarcerated for another seven years.   Under the circumstances, a dispositional hearing was unnecessary (see, Matter of Joyce T., 65 N.Y.2d 39, 46, 489 N.Y.S.2d 705, 478 N.E.2d 1306).

Order unanimously affirmed without costs.

MEMORANDUM: