| Matter of Asia Sabrina N. (Olu N.) |
| 2014 NY Slip Op 03595 [117 AD3d 543] |
| May 15, 2014 |
| Appellate Division, First Department |
[*1]
| In the Matter of Asia Sabrina N., an Infant. Olu N.,Appellant; Catholic Guardian Society and Home Bureau,Respondent. |
Kenneth M. Tuccillo, Hastings on Hudson, for appellant.
Magovern & Sclafani, Garden City (Joanna M. Roberson of counsel), forrespondent.
Tamara A. Steckler, The Legal Aid Society, New York (Judith Waksberg ofcounsel), attorney for the child.
Order of disposition, Family Court, New York County (Clark V. Richardson, J.),entered on or about July 10, 2013, which terminated respondent father's parental rights tothe subject child after a fact-finding determination of abandonment, and committed thechild's custody and guardianship to petitioner agency and the Commissioner of SocialServices of the City of New York for the purpose of adoption, unanimously affirmed,without costs.
Petitioner established by clear and convincing evidence that respondent abandonedhis daughter, within the meaning of Social Services Law § 384-b (5) (a).Respondent admitted that, during the statutorily relevant period, he did not attempt tocontact his daughter or the agency (see Matter of Christie A.M., 57 AD3d 225, 226 [1st Dept2008]). Respondent's incarceration does not excuse him from establishing andmaintaining contact with his daughter, because he failed to show that contact with thechild was not feasible (seeMatter of Alicia M., 22 AD3d 384, 385 [1st Dept 2005]).
Contrary to respondent's contention, the agency was not required to prove diligentefforts, because it proceeded on the ground of abandonment (see Matter of Bibianamiet L.-M.[Miledy L.N.], 71 AD3d 402, 403 [1st Dept 2010]). Moreover, the Family Courtprovidently exercised its discretion in denying respondent's request for a dispositionalhearing after the finding of abandonment (see Matter of Keyevon Justice P. [Lativia Denice P.], 90 AD3d477 [1st Dept 2011]).
Respondent failed to sustain his burden of demonstrating that he was deniedmeaningful representation and that the deficient representation resulted in actualprejudice (see Matter of MichaelC., 82 AD3d 1651, 1652 [4th Dept 2011], lv denied 17 NY3d 704[2011]). Given respondent's admission that he had no contact with the subject child orthe agency during the [*2]relevant time period, he couldnot have been prejudiced by any failing on the part of his trial counsel (see Matter of Cassandra Tammy S.[Babbah S.], 89 AD3d 540, 541 [1st Dept 2011]).
The court properly determined that the termination of respondent's parental rights toallow for adoption was in the best interests of the child. Concur—Mazzarelli, J.P.,Andrias, DeGrasse, Manzanet-Daniels and Feinman, JJ.