Terra R., Respondent-Appellant. v. << (2006)

 Petitioner established by clear and convincing evidence that respondent abandoned her children by failing to visit them or communicate with them or petitioner during the six-month period immediately preceding the filing of the petition (see Social Services Law § 384-b [5][a];  Matter of Ariel C., 248 A.D.2d 976, 669 N.Y.S.2d 1006, lv. denied 92 N.Y.2d 801, 677 N.Y.S.2d 71, 699 N.E.2d 431).   Neither respondent's incarceration nor the participation of respondent in an inpatient drug rehabilitation program during portions of the six-month period excuse her failure to communicate with the children or petitioner (see Matter of Rosalinda R., 16 A.D.3d 1063, 1064, 791 N.Y.S.2d 242, lv. denied 5 N.Y.3d 702, 799 N.Y.S.2d 772, 832 N.E.2d 1188;  Matter of Jovantay U., 298 A.D.2d 641, 642, 749 N.Y.S.2d 103).   Family Court properly determined that respondent's filing of a visitation petition near the conclusion of the six-month period did not preclude a finding of abandonment (see Matter of Alexander V., 179 A.D.2d 913, 914, 578 N.Y.S.2d 708;  see generally Matter of Crawford, 153 A.D.2d 108, 110-111, 549 N.Y.S.2d 667).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: