| Matter of Arthur C. |
| 2009 NY Slip Op 07835 [66 AD3d 1009] |
| October 27, 2009 |
| Appellate Division, Second Department |
| In the Matter of Arthur C., an Infant. St. Dominic's Home,Respondent; Herbert C., Appellant, et al., Respondent. In the Matter of Viergemaine Olgar C.,Also Known as Olgar Viergemaine C., Olgar C. and Olga C., an Infant. MercyFirst, Respondent;Herbert C., Appellant, et al., Respondent. |
—[*1] Warren & Warren, P.C., Brooklyn, N.Y. (Ira L. Eras of counsel), for petitioners-respondents. Steven Banks, New York, N.Y. (Tamara Steckler and Diane Pazar of counsel), attorney forthe children.
In two related proceedings pursuant to Social Services Law § 384-b, inter alia, toterminate the parental rights of the father on the ground that he had abandoned his child, ArthurC., and had permanently neglected his child Viergemaine Olgar C., also known as OlgarViergemaine C., also known as Olgar C., also known as Olga C., the father appeals, as limited byhis brief, from (1) so much of an order of fact-finding and disposition of the Family Court, KingsCounty (Pearl, J.), dated February 7, 2008, as, after a fact-finding hearing, found that heabandoned Arthur C., terminated his parental rights as to that child, and committed that child tothe custody and guardianship of the petitioner St. Dominic's Home and the Commissioner ofSocial Services of the City of New York, and (2) so much of an order of fact-finding anddisposition of the same court dated May 20, 2008, as, after fact-finding and dispositionalhearings, found that he permanently neglected Viergemaine Olgar C., also known as OlgarViergemaine C., also known as Olgar C., also known as Olga C., terminated his parental rightsas to that child, and committed that child to the custody and guardianship of the petitionerMercyFirst and the Commissioner of Social Services of the City of New York.
Ordered that the order of fact-finding and disposition dated February 7, 2008, is modified, onthe law and the facts, by deleting the provisions thereof terminating the father's parental rightsand transferring custody and guardianship of Arthur C. to the petitioner St. Dominic's Home andthe Commissioner of Social Services of the City of New York for the purpose of adoption; as somodified, [*2]the order of fact-finding and disposition datedFebruary 7, 2008, is affirmed insofar as appealed from, without costs or disbursements, and thematter is remitted to the Family Court, Kings County, for a dispositional hearing in accordanceherewith and a new disposition thereafter; and it is further,
Ordered that the order of fact-finding and disposition dated May 20, 2008, is affirmedinsofar as appealed from, without costs or disbursements.
The Family Court properly determined that there was clear and convincing evidence that thefather abandoned the child Arthur C. during the six-month period before the filing of thepetition, in view of the total absence of contact between the father and the child during thatperiod (see Social Services Law § 384-b [5] [a], [b]; Matter of Jahmir Domevlo J., 8 AD3d280, 280-281 [2004]; Matter of Derrick J., 287 AD2d 503 [2001]). Moreover, St.Dominic's Home did not prevent or discourage contact between the father and the child (seeMatter of Derrick J., 287 AD2d at 503-504).
However, based on new facts and allegations, which this Court may properly consider(see Matter of Michael B., 80 NY2d 299, 318 [1992]; Matter of Antonette Alasha E., 8AD3d 375, 376 [2004]), including that the child is 16 years old and does not have anadoption resource (see Domestic Relations Law § 111 [1] [a]), it is not clear thattermination of the father's parental rights is in the child's best interests (see Matter of Shakima Renee M., 43AD3d 343, 344 [2007]; Matter ofMarc David D., 20 AD3d 565, 567 [2005]; Matter of Miguel Angel Andrew R.,263 AD2d 354 [1999]). Accordingly, we remit the matter to the Family Court, KingsCounty, for a dispositional hearing to determine Arthur C.'s best interests and a new dispositionthereafter.
The agency established as a threshold matter that it made diligent efforts to encourage andstrengthen the parental relationship between the father and Viergemaine Olgar C., also known asOlgar Viergemaine C., also known as Olgar C., also known as Olga C. (hereinafter Viergemaine)(see Matter of Star Leslie W., 63 NY2d 136, 142 [1984]; Matter of Sheila G., 61NY2d 368, 384-385 [1984]). These efforts included scheduling numerous visits between thefather and the child, developing a service plan, providing the father with parenting skills classes,and advising the father as to how to obtain housing (see Matter of Kayshawn Raheim E., 56 AD3d 471, 472 [2008];Matter of Avery Curtis Foster Joe D., 306 AD2d 276 [2003]). Despite these efforts, thefather failed to plan for the return of the child by failing to take steps to acquire appropriatehousing. Accordingly, the Family Court properly found that the father permanently neglectedViergemaine. Moreover, the evidence adduced at the dispositional hearing established that itwould be in the best interests of Viergemaine to be freed for adoption by her foster parents (see Matter of Marqekah Lillius B., 63AD3d 1057, 1058 [2009]; Matter of Star Leslie W., 63 NY2d 136, 147-148 [1984];Matter of Amy B., 37 AD3d600, 601 [2007]; Matter of LiamFrancis P., 26 AD3d 385, 386 [2006]). Dillon, J.P., Florio, Belen and Roman, JJ.,concur.