Stephen D., Respondent-Appellant. v. << (2005)

 This appeal brings up for review the determination of Family Court, made upon a fact-finding hearing, that respondent abandoned his child.   We reject the contention of respondent that the determination is not supported by clear and convincing evidence.   Respondent made no attempt to contact his daughter, or to learn the child's whereabouts or condition, for a period of six months prior to the filing of the petition, giving rise to a presumption of abandonment (see Social Services Law § 384-b[5][a];  Matter of Alexander B., 277 A.D.2d 937, 716 N.Y.S.2d 253;  see generally Matter of Julius P., 63 N.Y.2d 477, 481, 483 N.Y.S.2d 175, 472 N.E.2d 1003).   Respondent's incarceration is not a defense to an abandonment petition (see Matter of Ariel C., 248 A.D.2d 976, 976-977, 669 N.Y.S.2d 1006, lv. denied 92 N.Y.2d 801, 677 N.Y.S.2d 71, 699 N.E.2d 431;  Matter of Anthony M., 195 A.D.2d 315, 316, 600 N.Y.S.2d 37).   We reject the contention of respondent that his financial situation prevented him from contacting his daughter during the relevant period.   The record establishes that he communicated by phone and mail with others during the same period and that he did not attempt to use any of the services that petitioner made available to incarcerated parents.   Respondent failed to rebut the presumption of abandonment, and his expressions of subjective intent to care for the child at a future time do not preclude a finding of abandonment (see Matter of Ulysses T., 87 A.D.2d 998, 999, 449 N.Y.S.2d 815, affd. 66 N.Y.2d 773, 497 N.Y.S.2d 368, 488 N.E.2d 114).

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

MEMORANDUM: