           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

774
CAF 10-00757
PRESENT: SMITH, J.P., CENTRA, FAHEY, GORSKI, AND MARTOCHE, JJ.


IN THE MATTER OF KEVON S.
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MONROE COUNTY DEPARTMENT OF HUMAN SERVICES,       MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

JEFFREY S., RESPONDENT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID M. ABBATOY, JR.,
OF COUNSEL), FOR RESPONDENT-APPELLANT.

WILLIAM K. TAYLOR, COUNTY ATTORNEY, ROCHESTER (ROBIN UNWIN OF
COUNSEL), FOR PETITIONER-RESPONDENT.

LISA J. MASLOW, ATTORNEY FOR THE CHILD, ROCHESTER, FOR KEVON S.


     Appeal from an order of the Family Court, Monroe County (John J.
Rivoli, J.), entered March 23, 2010 in a proceeding pursuant to Social
Services Law § 384-b. The order terminated the parental rights of
respondent.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Respondent father appeals from an order terminating
his parental rights on the ground of abandonment, pursuant to Social
Services Law § 384-b (5) (a). Petitioner established that, for the
relevant period of six months before the filing of the petition, the
father failed to visit the child and to communicate with the child or
petitioner although able to do so and not prevented or discouraged
from doing so by petitioner. We agree with the father that Family
Court erred in its order when it applied a disjunctive reading of the
statute by referring to the father’s “failure to visit with or
communicate” with the child or petitioner (emphasis added), but we
conclude that the error is of no moment inasmuch as the evidence
establishes that petitioner met its burden under the statute (see
Matter of Catholic Child Care Socy. Diocese of Brooklyn, 112 AD2d
1039, 1040).




Entered:    June 10, 2011                       Patricia L. Morgan
                                                Clerk of the Court
