New York Supreme Court Appellate Division, First Department
October 25, 2012
IN RE GIOVANNIE SINCERE M., AND ANOTHER, DEPENDENT CHILDREN UNDER THE AGE OF EIGHTEEN YEARS, ETC., AND DENNIS M., ETC., RESPONDENT-APPELLANT, ABBOTT HOUSE, PETITIONER-RESPONDENT.
Matter of Matter of Giovannie Sincere M. (Dennis M.)
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on October 25, 2012 Mazzarelli, J.P., Sweeny, Renwick, Richter, Roman, JJ.
Orders of disposition, Family Court, New York County (Susan K. Knipps, J.), entered on or about December 8, 2011, which, to the extent appealed from as limited by the briefs, upon finding that respondent father's consent for the adoption of the subject children was not required, transferred custody and guardianship of the children to petitioner agency and the Commissioner of Social Services for the purpose of adoption, unanimously affirmed, without costs, with respect to the disposition, and the appeal from the orders otherwise dismissed, without costs.
The father failed to appear at the fact-finding hearing, which considered whether his consent was required for the children's adoption. Accordingly, no appeal lies from that aspect of the orders (see Matter of Pedro A. v Susan M., 95 AD3d 458 [1st Dept 2012]; Matter of Jayden R., 61 AD3d 486, 486 [1st Dept 2009]).
Even if this Court considered the issue on the merits, the father failed to establish that he satisfied the criteria set forth in Domestic Relations Law § 111(1)(d). Indeed, the father admitted that he had not provided consistent child support while the children were in foster care, despite having the means to do so (see § 111[d][i]; see Matter of Isis S.C. [Lamont C.], 88 AD3d 602, 603 [1st Dept 2011]). The agency's alleged failure to inform the father of his parental obligations did not excuse him from fulfilling those obligations (see Matter of Cassandra Tammy S. [Babbah S.], 89 AD3d 540, 540 [1st Dept 2011]).
The Family Court properly denied the father's application for a suspended judgment, as that disposition was not available to him. As a notice-only father, his rights were limited to notice and an opportunity to be heard at the dispositional hearing as to the best interests of the children (see Domestic Relations Law § 111-a). He could not obtain custody of the children at the hearing, since he did not file a petition under article 6 of the Family Court Act.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 25, 2012
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