June 22, 1995
Appeal from the Family Court, New York County (Jeffrey Gallet, J.).
The finding of abandonment was supported by evidence that respondent, while incarcerated in Jamaica, WI, failed to communicate with the child or the agency for a period of seven months immediately preceding the filing of the petition, although not prevented or discouraged from doing so by the agency and allowed by the prison facilities to write letters and for a six-week period also to make telephone calls ( see, Social Services Law § 384-b [a]; Matter of Julius P., 63 N.Y.2d 477; Matter of Jasmine T., 162 A.D.2d 756, lv denied 76 N.Y.2d 714). Respondent's right to due process could not have been violated by a dispositional hearing that was not statutorily mandated, given the finding of abandonment ( Matter of Dlaine Bernice S., 72 A.D.2d 775). In any event, the hearing that was held gave all parties ample opportunity to present their views, the court exploring the child's best interests ( Matter of Israel R., 200 A.D.2d 498), and properly determining that a suspended judgment was not warranted absent a showing that respondent had taken sufficient steps to ameliorate the conditions that led to the child's placement ( Matter of Desmond Sinclair G., 202 A.D.2d 156, 158).
However, inasmuch as the record shows that the foster mother had provided an environment in which the child has lived and thrived for all but a few months of his life, the court erred in refusing to approve adoption by the foster mother based solely on her age of 67 and designating instead the back-up resource ( see, Matter of Infant S., 48 A.D.2d 425, 427). The adoption proceedings would be a better forum for determining the relative merits of these two qualified persons ( see, Social Services Law § 384-b; Family Ct Act § 642).
Concur — Rosenberger, J.P., Ellerin, Kupferman, Tom and Mazzarelli, JJ.