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In re Angela H. F. (Anonymous)

Supreme Court of New York, Second Department

November 1, 2017

In the Matter of Angela H. F. (Anonymous), also known as Angela F. (Anonymous), also known as Angela H. P. (Anonymous). New York Foundling Hospital, petitioner-respondent; Shombe M. (Anonymous), appellant, et al., respondents; Administration for Children's Services, nonparty-respondent. (Proceeding No. 1) In the Matter of Shombe M. (Anonymous), appellant,
v.
Sophia F. (Anonymous), respondent, New York Foundling Hospital, respondent-respondent; Administration for Children's Services, nonparty-respondent. (Proceeding No. 2) In the Matter of Shombe M. (Anonymous), appellant,
v.
New York Foundling Hospital, respondent; Administration for Children's Services, nonparty-respondent. (Proceeding No. 3) Bronx County Docket Nos. B-17307-09, P-6023-15, V-15109-15

          Argued - September 26, 2017

         D53629 M/hu

          Anthony DeGuerre, Staten Island, NY, for appellant.

          Daniel Gartenstein, Long Island City, NY, for petitioner-respondent in Proceeding No. 1, respondent-respondent in Proceeding No. 2, and respondent in Proceeding No. 3.

          Zachary W. Carter, Corporation Counsel, New York, NY (Fay S. Ng and Qian Julie Wang of counsel), for nonparty-respondent.

          Gail Jacobs, Great Neck, NY, attorney for the child.

          REINALDO E. RIVERA, J.P. CHERYL E. CHAMBERS COLLEEN D. DUFFY ANGELA G. IANNACCI, JJ.

          DECISION & ORDER

         Appeal by the father from an order of fact-finding and disposition of the Family Court, Queens County (Joan L. Piccirillo, J.), dated July 15, 2016. The order, insofar as appealed from, upon a decision of that court dated May 20, 2016, made after a hearing, determined that the father's consent to the adoption of the subject child was not required pursuant to Domestic Relations Law § 111 and that the petitioner was authorized to consent to the adoption of the child.

         ORDERED that on the Court's own motion, the notice of appeal from the decision is deemed to be a premature notice of appeal from the order of fact-finding and disposition (see CPLR 5520[c]); and it is further, ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.

         The subject child was born in March 2006, and her birth certificate did not identify a father. In September 2006, the child was removed from the mother's custody and placed in foster care under the supervision of the New York Foundling Hospital (hereinafter the agency). In 2009, the agency commenced a proceeding in the Family Court, Bronx County, to terminate the mother's parental rights, alleging that although Shombe M. (hereinafter the father) was named as the father in an agency record, he was not entitled to notice of the proceeding, and his consent to the child's adoption was not required. In October 2012, the court terminated the mother's parental rights. In January 2014, the court determined that the father's consent to the adoption was not required.

         Thereafter, the father commenced a paternity proceeding in the Family Court, Bronx County. The Family Court Judge presiding over the proceedings was subsequently transferred to the Family Court, Queens County, the proceedings were transferred to that court, and the paternity proceeding was assigned a Queens County docket number. During the pendency of the paternity proceeding, the agency commenced an adoption proceeding. On August 12, 2015, the Family Court, Queens County, issued an order of filiation adjudicating the father to be the child's father. The court then held a hearing to determine whether the father's consent to the adoption was required and whether it was in the child's best interests to be adopted by her foster mother. After the hearing, the court determined that the father's consent to the adoption was not required and that it was in the child's best interests to be adopted by her foster mother. The father appeals.

         The Family Court's determination that the father's consent to the adoption of the child was not required was supported by clear and convincing evidence (see Domestic Relations Law § 111[1][d]; Matter of Jasiah T.-V.S.J. [Joshua W.], 112 A.D.3d 717). The father failed to meet his burden of establishing that he maintained substantial and continuous contact with the child through the payment of support and either regular visitation or other communication with her (see Matter of Robert O. v Russell K., 80 N.Y.2d 254, 264; Matter of Jason Brian S., 303 A.D.2d 759).

         The father's contention that he was denied his right to due process by the Family Court's determination to strike the testimony of a witness is unpreserved for appellate review (see generally Matter of Kleevuort C. [Fredlyn V.],84 A.D.3d 1371). In any event, the contention is without merit. The court did not improvidently exercise its discretion in striking the witness's testimony when, after granting an adjournment once to permit her to continue her testimony, she failed to appear on time on the adjourned date (see Matter of David L. Jr. [David L.], 118 A.D.3d 468; Matter of Amilya Jayla S. [Princess Debbie A.],83 A.D.3d 582). The evidence at the hearing established that it was in the ...


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