Opinion
September 18, 1990
Appeal from the Family Court, New York County (Judith Sheindlin, J.).
The subject child was born in 1983 and placed in foster care in 1984. One month after being placed in foster care, the child was placed in a preadoptive home, where he has since resided.
In December of 1987, more than three full years from the date of placement in foster care, the Cardinal McCloskey Children's and Family Services (the Agency) filed the instant petition in Family Court, New York County, seeking an order pursuant to Social Services Law § 384-b that the child has been abandoned by his parents.
After a fact-finding hearing, the petition was granted. In order to establish abandonment pursuant to Social Services Law § 384-b, it must be proven by clear and convincing evidence that the parent has failed to maintain contact with the child for a period of at least six months immediately prior to the filing of the petition. On this record, it was established that respondent failed to communicate with the child since he was placed in the preadoptive home.
It has been held and we agree that incarceration is not a sufficient excuse for failure to visit or otherwise communicate with the child. (Matter of I.R., 153 A.D.2d 559 [2d Dept 1989].) Incarceration does not prohibit contact with the child by mail or telephone. The record clearly indicates that no such effort was ever made. Further, we find that communication between the paternal grandmother and the Agency may not be imputed to the father for purposes of satisfying the requirements of the statute. As we held in Matter of Crawford ( 153 A.D.2d 108, 112), such visits "are not attributable to respondent for the purpose of manifesting either parental interest in, or communication with, the child (Social Services Law § 384-b [a]). The statute expressly requires communication by the parent to negate the inference of abandonment."
Finally, the putative father's claim that the Family Court erred in limiting cross-examination with regard to contact between the child's paternal grandmother and the Agency in 1985 lacks merit. The testimony sought to be adduced did not relate to communications between the parent and the child or the Agency, and in any event, was beyond the relevant six-month time period immediately prior to the filing of the petition.
Concur — Ross, J.P., Rosenberger, Kassal, Wallach and Rubin, JJ.