IN RE: FONCHASITY H. and Fondeshia H.

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

IN RE: FONCHASITY H. and Fondeshia H. Monroe County Department of Human Services, Petitioner-Respondent; Terry H., Respondent-Appellant.

Decided: December 31, 2008

PRESENT:  SCUDDER, P.J., SMITH, CENTRA, AND FAHEY, JJ. James S. Hinman, Rochester, for Respondent-Appellant. Daniel M. Delaus, Jr., County Attorney, Rochester (Paul N. Humphrey of Counsel), for Petitioner-Respondent. Anthony Leavy, Law Guardian, Rochester, for Fonchasity H. and Fondeshia H.

 Respondent father appeals from an order terminating his parental rights with respect to his two daughters upon a finding that he had abandoned them (see Social Services Law § 384-b[4] [b];  [5] ).   Contrary to the contention of the father, petitioner met its burden of establishing by clear and convincing evidence that he failed to visit his daughters or to communicate with them or petitioner, although able to do so, during the six-month period immediately preceding the filing of the petition (see Matter of Annette B., 4 N.Y.3d 509, 513-514, 796 N.Y.S.2d 569, 829 N.E.2d 661, rearg.denied 5 N.Y.3d 783, 801 N.Y.S.2d 803, 835 N.E.2d 663;  Matter of Tonasia K., 49 A.D.3d 1247, 852 N.Y.S.2d 881).   A caseworker for petitioner testified at the fact-finding hearing that the father, who was incarcerated, failed to communicate with or to contact petitioner within the statutory period, and that the children indicated to her that they had not spoken with their father during that period.   Contrary to the further contention of the father, his incarceration during the statutory period did not relieve him of his responsibility to communicate with the children or petitioner (see Matter of Anthony T., 35 A.D.3d 1201, 826 N.Y.S.2d 874, lv. denied 8 N.Y.3d 809, 834 N.Y.S.2d 507, 866 N.E.2d 453;  see also Matter of Maliq M., 48 A.D.3d 1251, 851 N.Y.S.2d 330, lv. denied 10 N.Y.3d 710, 859 N.Y.S.2d 396, 889 N.E.2d 83;  Matter of Lindsey B., 16 A.D.3d 1078, 791 N.Y.S.2d 261).   We conclude that Family Court properly determined that it was in the best interests of the children to terminate the father's parental rights and to free them for adoption (see generally Matter of Anthony T., 208 A.D.2d 985, 986, 617 N.Y.S.2d 390, lv. denied 85 N.Y.2d 801, 624 N.Y.S.2d 371, 648 N.E.2d 791).

We have considered the father's remaining contention and conclude that it is without merit.

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

MEMORANDUM: