| Matter of Cassandra Tammy S. (Babbah S.) |
| 2011 NY Slip Op 08212 [89 AD3d 540] |
| November 15, 2011 |
| Appellate Division, First Department |
| In the Matter of Cassandra Tammy S. and Another, ChildrenAlleged to be Abandoned. Babbah S. et al., Appellants; Episcopal Social Services,Respondent. |
—[*1] Geoffrey P. Berman, Larchmont, for Elizabeth P., appellant. Magovern & Sclafani, New York (Joanna M. Roberson of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Marcia Egger of counsel), attorneyfor the children.
Orders of disposition, Family Court, Bronx County (Allen Alpert, J.), entered on or aboutAugust 23, 2010, which, to the extent appealed from, upon findings that respondent father'sconsent for the adoption of his child was not required and that respondent mother abandoned thesubject children, terminated the mother's parental rights to the subject children and transferredcustody and guardianship of the children to petitioner agency and the Commissioner of SocialServices for the purpose of adoption, unanimously modified, on the law and the facts, to vacatethe orders of disposition, and remand for a new dispositional hearing regarding the best interestsof the children, and otherwise affirmed, without costs.
The father's consent for the adoption of his child was not required since he admitted that hehad not provided her with consistent financial support, despite having the means to do so(see Domestic Relations Law § 111 [1] [d]; Matter of Vanessa B. [Lebert Charles C.], 76 AD3d 912, 913[2010]). The agency's alleged failure to instruct the father to provide financial support did notexcuse him from doing so (see Matter ofMarc Jaleel G. [Marc E.G.], 74 AD3d 689, 690 [2010]).
We reject the mother's claim that she was denied effective assistance of counsel with respectto the fact-finding proceeding (see People v Benevento, 91 NY2d 708, 714-715 [1998]).Given the mother's admission that she had no contact with the subject children or the agencyduring the relevant time period, she could not have been prejudiced by any failing on the part ofher counsel (see Matter of Nikeerah S.[Barbara S.], 69 AD3d 421, 422 [2010]).
No evidence was presented at the dispositional hearing with respect to the suitability of [*2]the foster home or the desires of the children and foster parents.Indeed, the court's best interests determination rested exclusively on the arguments of counsel.Given the foregoing and evidence at the hearing that respondents' situation has improved, weremand for a new dispositional hearing with respect to the best interests of the children (seegenerally Matter of Patrick L. McC., 179 AD2d 220, 223 [1992]). Concur—Andrias,J.P., Friedman, DeGrasse, Freedman and Manzanet-Daniels, JJ.