In the Matter of Tanay R. S. (Anonymous). St. Vincent's Services, Inc., respondent; Tanya M. (Anonymous), et al., appellants. Docket No. B-20569-12
S. Calderon, Jamaica, NY, for appellant Tanya M.
P. Forbes, Jamaica, NY, for appellant Robert S.
Wingate, Kearney & Cullen, Brooklyn, NY (Rachel Ambats of
counsel), for respondent.
Seymour W. James, Jr., New York, NY (Tamara A. Steckler and
Judith Stern of counsel), attorney for the child.
WILLIAM F. MASTRO, J.P. LEONARD B. AUSTIN ROBERT J. MILLER
JOSEPH J. MALTESE, JJ.
DECISION & ORDER
by the mother from an order of fact-finding of the Family
Court, Kings County (Ann O'Shea, J.), dated April 16,
2014, and separate appeals by the mother and the father from
an order of disposition of that court dated August 19, 2015.
The order of fact-finding, after a fact-finding hearing,
found that the mother permanently neglected the subject
child. The order of disposition, after a dispositional
hearing, terminated the mother's parental rights and
freed the child for adoption by her foster parents.
that the appeal from the order of fact-finding is dismissed,
without costs or disbursements, as the order of fact-finding
was superseded by the order of disposition and is brought up
for review on the mother's appeal from the order of
disposition; and it is further, ORDERED that the father's
appeal from the order of disposition is dismissed, without
costs or disbursements, as he is not aggrieved by that order
(see CPLR 5511); and it is further, ORDERED that the
order of disposition is affirmed insofar as reviewed, without
costs or disbursements.
petitioner commenced this proceeding pursuant to Social
Services Law § 384-b to terminate the mother's
parental rights to the subject child on the ground of
permanent neglect. The petition alleged that the child had
continuously remained in foster care since April 7, 2010,
when she was two years old, and that despite the agency's
efforts to help the mother develop a meaningful relationship
with the child, the mother failed to cooperate and engage in
necessary services. The petition further alleged that the
father, who was named on the child's birth certificate,
was entitled to notice of the proceeding, but that his
consent to an adoption was not required because he failed to
satisfy the requirements of Domestic Relations Law §
the course of the proceeding, the Family Court issued an
order granting that branch of the petition which sought a
determination that the father's consent to the adoption
of the child was not required pursuant to Domestic Relations
Law § 111. In a prior decision and order, this Court
granted the father leave to appeal and affirmed the Family
Court's order, concluding that its "determination
that the father's consent to the adoption of the... child
was not required was supported by clear and convincing
evidence [because] [t]he father failed to meet his burden of
establishing that he maintained substantial and continuous or
repeated contact with the child through the payment of
support and either regular visitation or other communication
with the child" (Matter of Tanay R.S. [Robert
S.-Tanya M.], 122 A.D.3d 865, 866 [citation omitted];
see Domestic Relations Law § 111[d];
Matter of Seasia D., 10 N.Y.3d 879, 880).
the pendency of the father's prior appeal, the proceeding
to terminate the mother's parental rights continued.
After a fact-finding hearing, the Family Court issued an
order of fact-finding, which found that the mother had
permanently neglected the child. After a dispositional
hearing, at which both the mother and the father testified,
the court issued an order of disposition, which terminated
the mother's parental rights and directed that the child
be freed for adoption by the foster parents. The mother
appeals from both orders, and the father separately appeals
from the order of disposition.
the circumstances of this case, the father, whose consent was
not required for the child's adoption pursuant to
Domestic Relations Law § 111, is not aggrieved by the
order of disposition (see Mixon v TBV, Inc., 76
A.D.3d 144; see also Domestic Relations Law §
111-a; Matter of Kevin A., Jr., 61 A.D.3d 859, 860;
Matter of Tatiana R., 17 Misc.3d 443, 459 [Fam Ct,
Kings County]). Thus, his appeal must be dismissed
(see CPLR 5511; Matter of Josue M.A.P. [Coreas
Mancia-Perez Lue], 143 A.D.3d 827, 828).
to the mother's appeal from the order of disposition,
which brings the order of fact-finding up for review, we find
that the Family Court properly determined that she
permanently neglected the child. The petitioner proved by
clear and convincing evidence that it fulfilled its statutory
duty to exercise diligent efforts to encourage and strengthen
the mother's parental relationship with the child
(see Social Services Law § 384-b[a];
Matter of Hailey ZZ. [Ricky ZZ.], 19 N.Y.3d 422,
429; Matter of Sheila G., 61 N.Y.2d 368, 373;
Matter of Joshua E.R. [Yolaine R.], 123 A.D.3d 723,
725-726). Further, the petitioner proved that, despite those
efforts, the mother failed, for a period of more than one
year after the child came into the petitioner's care, to
substantially and continuously maintain contact with the
child or plan for her future, although physically and
financially able to do so (see Social Services Law
§ 384-b[a], [c]; Matter of Hailey ZZ. [Ricky
ZZ.], 19 N.Y.3d at 429; Matter of Mercedes R.B.
[Heather C.], 130 A.D.3d 1022, 1023; Matter of Egypt
A.A.G. [Kimble G.], 108 A.D.3d 533; Matter of David
O.C., 57 A.D.3d 775, 775-776).
the Family Court properly determined that it would be in the
best interests of the child to terminate the mother's
parental rights and free the child, who is now nine years
old, for adoption by her foster parents (see Matter of
Anthony L.,95 A.D.3d 1330; Matter of David
O.C., 57 A.D.3d at 776). Contrary to the mother's
contention, a suspended judgment would not have been
appropriate given her lack of insight into her problems and
her failure to address the primary issues that led to the
child's removal from the home (see Family Ct Act
§ 631; Matter of Lasuree A.B. [Carla S.B.], 141
A.D.3d 578, ...