| Matter of Jayden R. |
| 2009 NY Slip Op 02842 [61 AD3d 486] |
| April 14, 2009 |
| Appellate Division, First Department |
| In the Matter of Jayden R., a Child Alleged to be PermanentlyNeglected. Luis R., Appellant; Catholic Guardian Society and Home Bureau,Respondent. |
—[*1] Magovern & Sclafani, New York (Marion C. Perry of counsel), for respondent. Tamara A. Stecker, The Legal Aid Society, New York (Claire V. Merkine of counsel), LawGuardian.
Order of disposition, Family Court, New York County (Sara P. Schechter, J.), entered on orabout May 18, 2007, which, to the extent appealable, found, after a hearing, that the motherpermanently neglected the child, terminated her parental rights and awarded custody of the childto petitioner agency and the Commissioner of Social Services for purposes of adoption by hisfoster mother, unanimously affirmed, without costs.
The father defaulted in appearing at the hearing which considered whether his consent wasrequired for the child's adoption. No appeal lies from this default (see Matter of Myles N., 49 AD3d381, 382 [2008], lv denied 11 NY3d 709 [2008]).
Even if the court were to consider the issue on the merits, the father cannot establish that hesatisfied the criteria set forth in Domestic Relations Law § 111 (1) (d). He testified thatalthough he was working on a regular basis for the last 1½ years, he failed to providesupport for the child and he admitted that he did not visit the child or communicate with thefoster mother for at least 10 months. Accordingly, the court properly found that the father'sconsent was not required for the child's adoption.
A preponderance of the evidence demonstrated that it was in the child's best interests to befreed for adoption by the foster mother, with whom he had lived for four years. Agency recordsindicated that all of his physical, medical and emotional needs were being met by the fostermother. The father contends that the foster mother is too old to properly care for the child and hewas improperly denied an adjournment of the dispositional hearing which would have enabledhim to present two additional witnesses. While age is a factor to be considered, it is not the onlyor, necessarily, a dispositive factor in determining whether a child's best interests would beserved by the adoption (see Matter of Jennifer A., 225 AD2d 204, 207 [1996], lvdenied 91 [*2]NY2d 809 [1998]). The foster mother hasdemonstrated her ability and willingness to care for the child and adequate backup resources areavailable. In contrast, the father showed limited interest in the child since his placement in fostercare, and returned him to the mother after an incident where she placed him in a dangeroussituation. Furthermore, based on the father's offer of proof, the testimony of the witnesses hesought to present would have been cumulative or irrelevant. Concur—Saxe, J.P.,Friedman, Sweeny, Acosta and Freedman, JJ.