Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

IN RE: ALICIA M., A Dependent Child Under the Age of Eighteen Years, etc., Roy C., Respondent-Appellant, Cardinal McCloskey Services, Petitioner-Respondent.

Decided: October 20, 2005

SAXE, J.P., ELLERIN, WILLIAMS, CATTERSON, MALONE, JJ. Dora M. Lassinger, East Rockaway, for appellant. David H. Berman, Mamaroneck, for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Judith Waksberg of counsel), and Proskauer Rose LLP, New York (Susan D. Friedfel of counsel), Law Guardian.

Order of disposition, Family Court, Bronx County (Clark V. Richardson, J.), entered on or about July 11, 2003, which, to the extent appealed from, upon a finding of abandonment, terminated appellant's parental rights to the subject child, and committed custody and guardianship of the child to petitioner agency and the Commissioner of Social Services for the purpose of adoption, unanimously affirmed, without costs.

 Petitioner established by clear and convincing evidence that appellant abandoned his daughter, within the meaning of Social Services Law § 384-b(5)(a).   Appellant admitted that, during the statutorily relevant period, he was incarcerated and did not attempt to contact his daughter or the agency.   He does not claim that the agency discouraged or prevented him from such contact and has not shown that contact with the child was infeasible (see Matter of Anthony M., 195 A.D.2d 315, 600 N.Y.S.2d 37 [1993] ).   Incarceration does not excuse a parent from establishing and maintaining contact with a child (see id.;   and see Matter of Marie Luz C., 6 A.D.3d 304, 775 N.Y.S.2d 305 [2004];  Matter of Crystal C., 222 A.D.2d 298, 636 N.Y.S.2d 11 [1995] ).   We note that, apart from disputing the underlying finding of abandonment, appellant does not challenge the dispositional determination.