IN RE: SALMA M.

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

IN RE: SALMA M., et al., Dependent Children Under the Age of Eighteen Years, etc., Herman Carlee M., Respondent-Appellant, Miracle Makers, Inc., et al., Petitioners-Respondents.

Decided: May 16, 2002

WILLIAMS, P.J., TOM, MAZZARELLI, ELLERIN, and MARLOW, JJ. Robyne Camp, for Salma M. Dennis Houdek, for Respondent-Appellant.

Orders of disposition, Family Court, Bronx County (Marjorie Fields, J.), entered on or about December 17, 1997, terminating respondent's parental rights to the subject children upon findings of abandonment, and transferring the children's custody and guardianship to petitioner agency and the Commissioner of Social Services for the purposes of adoption, unanimously affirmed, without costs.

 Respondent failed to overcome the presumption of abandonment raised by his failure to communicate with the children or agency during the six-month period immediately preceding the filing of the petition (Social Services Law § 384-b[5][a] ).   Incarceration does not, by itself, excuse such failure (Matter of Anthony M., 195 A.D.2d 315, 600 N.Y.S.2d 37), and respondent's testimony that the conditions of his confinement were such as to make it impossible for him to obtain a pen and paper or use the telephone raise issues of credibility that were properly resolved by Family Court.   We note in the latter regard clear and convincing evidence that respondent, while incarcerated, had been writing letters to the children on a regular and frequent basis prior to the six-month abandonment period, but then abruptly stopped.