Thomas M., Respondent-Appellant. v. << (2006)

 Respondent appeals from an order granting the petition seeking termination of his parental rights on the ground of abandonment.   At the time of the hearing on the petition, respondent was incarcerated in Pennsylvania.   Respondent participated in the first two court appearances by telephone, but thereafter refused to participate by telephone.   We note that the order on appeal is incorrectly titled a “default” order of disposition.   Respondent's counsel appeared at and participated in the hearing, and thus there was no default (see Matter of Sales v. Gisendaner, 272 A.D.2d 997, 707 N.Y.S.2d 562;  Matter of Jennifer DD., 227 A.D.2d 675, 676, 641 N.Y.S.2d 652).

 Contrary to the contention of respondent, petitioner established by clear and convincing evidence that he failed to communicate with either the child or petitioner during the relevant period of time (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 Brianna K.J.W., 15 A.D.3d 880, 880-881, 789 N.Y.S.2d 390).   Also contrary to the contention of respondent, he was not denied his right to due process when Family Court proceeded with the hearing in his absence (see Matter of Robert David L., 7 A.D.3d 529, 530, 776 N.Y.S.2d 316, lv. denied 3 N.Y.3d 606, 785 N.Y.S.2d 23, 818 N.E.2d 665;  Matter of James Carton K., 245 A.D.2d 374, 375-377, 665 N.Y.S.2d 426, lv. denied 91 N.Y.2d 809, 670 N.Y.S.2d 403, 693 N.E.2d 750;  see also Matter of William EE., 245 A.D.2d 813, 814, 666 N.Y.S.2d 783;  Jennifer DD., 227 A.D.2d at 675-676, 641 N.Y.S.2d 652).   The court arranged for respondent to participate in the hearing by telephone, and respondent's counsel represented respondent's interests at the hearing (see Robert David L., 7 A.D.3d at 530, 776 N.Y.S.2d 316;  Matter of Raymond Dean L., 109 A.D.2d 87, 90-91, 490 N.Y.S.2d 75).   Finally, we reject the contention of respondent that he did not receive effective assistance of counsel (see Matter of Whitley v. Leonard, 5 A.D.3d 825, 827, 772 N.Y.S.2d 620;  Matter of Bates v. Bates, 290 A.D.2d 732, 734, 736 N.Y.S.2d 488;  see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

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

MEMORANDUM: