IN RE: ALEX JORDAN D. (Anonymous).

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

IN RE: ALEX JORDAN D. (Anonymous). Suffolk County Department of Social Services, respondent; Emily Bernice S. (Anonymous), appellant.  (Proceeding No. 1). In the Matter of Elijah Lewis J. (Anonymous). Suffolk County Department of Social Services, respondent; Emily Bernice S. (Anonymous), appellant.  (Proceeding No. 2).

Decided: October 27, 2009

WILLIAM F. MASTRO, J.P., FRED T. SANTUCCI, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ. Donna England, Centereach, N.Y., for appellant. Christine Malafi, County Attorney, Central Islip, N.Y. (Gary Rosenthal of counsel), for respondent. J. Gary Waldvogel, Smithtown, N.Y., attorney for the children.

In two related proceedings pursuant to Social Services Law § 384-b to terminate parental rights on the grounds of permanent neglect and abandonment, the mother appeals from an order of fact-finding and disposition of the Family Court, Suffolk County (Freundlich, J.), dated July 31, 2008, which, after a hearing, terminated her parental rights upon findings that she permanently neglected Alex Jordan D. and abandoned Elijah Lewis S., and transferred guardianship and custody of the children to the petitioner for the purpose of adoption.   With respect to so much of the order as relates to Proceeding No. 1, which pertains to Alex Jordan D., assigned counsel has submitted a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 in which she moves to be relieved of the assignment to prosecute the appeal.

ORDERED that the order of fact-finding and disposition is affirmed, without costs or disbursements.

 We have reviewed the record and agree with assigned counsel that there are no nonfrivolous issues which could be raised on appeal from so much of the order of fact-finding and disposition as relates to the child Alex Jordan D. Counsel's application for leave to withdraw as counsel from so much of the appeal as relates to that child is granted (see Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493;  Matter of Kowan Jamel Mosha F., 63 A.D.3d 741, 879 N.Y.S.2d 721).

 With respect to the proceeding concerning the child Elijah Lewis J., the evidence at the hearing established, by clear and convincing evidence, that the appellant mother abandoned Elijah during the six-month period immediately prior to the filing of the petition (see Social Services Law § 384-b[4], [5] [a];  Matter of Robert A.G., 62 A.D.3d 701, 879 N.Y.S.2d 496).   The existence of an order of protection prohibiting contact between the mother and Elijah did not excuse her from maintaining contact with the petitioner, nor did the fact that she was incarcerated excuse her from doing so (see Matter of Tiffany RR., 44 A.D.3d 1126, 843 N.Y.S.2d 477;  Matter of Elizabeth Susanna R., 11 A.D.3d 619, 783 N.Y.S.2d 641;  Matter of Oscar L., 8 A.D.3d 569, 779 N.Y.S.2d 218;  Matter of Jose Andres M., 8 A.D.3d 385, 777 N.Y.S.2d 700).   Notably, on the two occasions during the relevant six-month period that the mother was visited in prison by Elijah's caseworker, she expressly indicated an intent to forego her parental rights (cf. Matter of Kerry J., 288 A.D.2d 221, 732 N.Y.S.2d 430).

The mother's remaining contention is without merit.

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