Matter of Anthony T.

Matter of Anthony T. 2006 NY Slip Op 09792 [35 AD3d 1201] December 22, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

In the Matter of Anthony T. and Others, Infants. Oneida County Department of Social Services, Respondent; Terra R., Appellant.

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Appeal from an order of the Family Court, Oneida County (Bernadette T. Romano, J.), entered December 19, 2005 in a proceeding pursuant to Social Services Law § 384-b. The order terminated respondent's parental rights and committed the guardianship and custody of respondent's three children to petitioner.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Petitioner established by clear and convincing evidence that respondent abandoned her children by failing to visit them or communicate with them or petitioner during the six-month period immediately preceding the filing of the petition (see Social Services Law § 384-b [5] [a]; Matter of Ariel C., 248 AD2d 976 [1998], lv denied 92 NY2d 801 [1998]). Neither respondent's incarceration nor the participation of respondent in an inpatient drug rehabilitation program during portions of the six-month period excuse her failure to communicate with the children or petitioner (see Matter of Rosalinda R., 16 AD3d 1063, 1064 [2005], lv denied 5 NY3d 702 [2005]; Matter of Jovantay U., 298 AD2d 641, 642 [2002]). Family Court properly determined that respondent's filing of a visitation petition near the conclusion of the six-month period did not preclude a finding of abandonment (see Matter of Alexander V., 179 AD2d 913, 914 [1992]; see generally Matter of Crawford, 153 AD2d 108, 110-111 [1990]). Present—Scudder, P.J., Martoche, Centra and Green, JJ.