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In re Tanay R. S. (Anonymous)

Supreme Court of New York, Second Department

February 8, 2017

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

          Lewis S. Calderon, Jamaica, NY, for appellant Tanya M.

          Steven 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

         Appeal 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.

         ORDERED 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appeal from the order of fact-finding is dismissed, without costs or disbursements, as the order of fact-finding was superseded by the order of disposition and is brought up for review on the mother's appeal from the order of disposition; and it is further, ORDERED that the father's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.

         The 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 § 111.

         During 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[1][d]; Matter of Seasia D., 10 N.Y.3d 879, 880).

         During 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.

         Under 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).

         Turning 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[7][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[7][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).

         Furthermore, 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, ...


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