IN RE: GUARDIANSHIP and Custody OF NOELLE DENISE P.

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

IN RE: GUARDIANSHIP and Custody OF NOELLE DENISE P., etc., A Dependent Child Under the Age of Eighteen Years, etc., Arlene J.N., etc., Respondent-Appellant, Leake and Watts Services, Inc., Petitioner-Respondent.

Decided: April 27, 2000

MAZZARELLI, J.P., ELLERIN, LERNER, RUBIN and ANDRIAS, JJ. Tracy Yosten, for Noelle Denise P. Dennis Houdek, for Respondent-Appellant. Douglas H. Reiniger, for Petitioner-Respondent.

Order of disposition, Family Court, Bronx County (Harold Lynch, J.), entered on or about December 2, 1997, insofar as appealed from, terminating respondent-appellant's parental rights to the subject child and committing the child's custody and guardianship to petitioner agency and the Commissioner of Social Services for the purposes of adoption, following a fact-finding determination of abandonment, unanimously affirmed, without costs.

 The finding of abandonment is supported by clear and convincing evidence that appellant failed to communicate with the child or petitioner agency for three and a half years following the child's placement into foster care shortly after her birth, including the six-month period immediately preceding the filing of the instant petition.   This gave rise to a presumption of abandonment that appellant did not even attempt to rebut by taking the stand and testifying to any efforts she made to so communicate (Social Services Law § 384-b[5][a];  see, Matter of Charles Clarence C., 213 A.D.2d 294, 623 N.Y.S.2d 876).   While a preponderance of the evidence at the dispositional hearing clearly supports the disposition terminating appellant's parental rights, we would note that on this record such disposition could have been made without conducting a dispositional hearing (see, Matter of Maurice Jamel G., 267 A.D.2d 173, 700 N.Y.S.2d 452).

MEMORANDUM DECISION.