| Matter of Yamilette M.G. (Marlene M.) |
| 2014 NY Slip Op 04006 [118 AD3d 698] |
| June 4, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Yamilette M.G., Also Known asYamilette M. Little Flower Children and Family Services et al., Respondents; MarleneM. et al., Appellants. |
Larry S. Bachner, Jamaica, N.Y., for appellant Marlene M.
Linda C. Braunsberg, Staten Island, N.Y., for appellant Edwin G.
Carrieri & Carrieri, P.C., Mineola, N.Y. (Ralph R. Carrieri of counsel), forrespondent Little Flower Children and Family Services.
Mark Brandys, New York, N.Y., attorney for the child.
In a proceeding pursuant to Social Services Law § 384-b to terminateparental rights on the ground of permanent neglect, the mother appeals, as limited by herbrief, from so much of an order of fact-finding and disposition of the Family Court,Kings County (Gruebel, J.), dated December 13, 2012, as, after fact-finding anddispositional hearings, and upon a decision of the same court (Ambrosio, J.), datedAugust 3, 2011, found that she permanently neglected the subject child, terminated herparental rights, and transferred guardianship and custody of the subject child to thepetitioners for the purpose of adoption, and the father separately appeals, as limited byhis brief, from so much of the same order of fact-finding and disposition as found that hewas not a father whose consent to the adoption of the subject child was required pursuantto Domestic Relations Law § 111, and that he permanently neglected thesubject child, terminated his parental rights, and transferred guardianship and custody ofthe subject child to the petitioners for the purpose of adoption.
Ordered that the order of fact-finding and disposition is affirmed insofar as appealedfrom, without costs or disbursements.
On a prior appeal, this Court determined that reasonable efforts to return the subjectchild to the home should be excused as being detrimental to her best interests (see Matter of Yamillette G.[Marlene M.], 74 AD3d 1066, 1068 [2010]). "The law of the case doctrineforecloses re-examination of that issue, absent a showing of subsequent evidence or achange in the law" (Clinkscale vSampson, 104 AD3d 722, 723 [2013]; see Wells Fargo Bank Minn., N.A. v Perez, 70 AD3d 817,817 [2010]). Here, the mother and father had a full and fair opportunity to address thisissue. They have neither presented any new evidence that would change the result nordemonstrated that there [*2]has been a subsequentchange in the law. Under these circumstances, the mother and father are barred fromraising the same arguments again on this appeal.
The Family Court's determination that the father's consent to the adoption of thesubject child was not required is supported by clear and convincing evidence. The fatherfailed to meet his burden of establishing that he maintained substantial and continuous orrepeated contact with the child through the payment of support and either regularvisitation or other communication with the child (see Domestic Relations Law§ 111 [1] [d]; Matter of Julian J.C. [Juan C.], 96 AD3d 937, 938 [2012];Matter of Michael A.B.[Richard A.B.], 98 AD3d 579, 579 [2012]). Moreover, his incarceration "did notabsolve him of the responsibility to provide financial support for the child, according tohis means, and to maintain regular contact with the child or the petitioner" (Matter of Jayquan J. [Clint J.],77 AD3d 947, 948 [2010]; see Matter of De'Von M.F.C. [Mustapha F.], 105 AD3d738, 739 [2013]; Matter ofMartin V.L. [Martin L.], 88 AD3d 714, 715 [2011]; Matter of Kevin A., Jr., 61AD3d 859, 860 [2009]).
As the court further found, clear and convincing evidence established that the fatherpermanently neglected the subject child by failing to plan for her future, as the paternalgrandmother was not a viable custodial resource (see Social Services Law§ 384-b [7] [c]; Matter of Angel R.F. [Nicholas F.], 114 AD3d 781, 781[2014]; Matter of KennethFrederick G. [Charles G.], 81 AD3d 645, 645 [2011]; Matter of Jeremy D.R., 40AD3d 764, 765 [2007]). Additionally, the evidence presented at the fact-findinghearing demonstrated that the mother failed to plan for the future of the subject child, asshe did not offer a viable custodial resource (see Social Services Law§ 384-b [7] [c]; Matter of Angel R.F. [Nicholas F.], 114 AD3d at781; Matter of Kenneth Frederick G. [Charles G.], 81 AD3d at 645; Matter ofJeremy D.R., 40 AD3d at 765). Accordingly, the Family Court's finding that themother and father permanently neglected the subject child should not be disturbed.
After a finding of permanent neglect has been made, the Family Court must render adisposition based upon the best interests of the child (see Family Ct Act§ 631; Matter of Star Leslie W., 63 NY2d 136, 147-148 [1984]).Here, a preponderance of the evidence supports the determination that it was in the bestinterests of the subject child to terminate the parental rights of the mother and fatherrather than issue a suspended judgment. Although the mother had attended therapy andparticipated in a parenting group, as well as other forms of training during herincarceration, the subject child has lived all of her life, except for the first two months,with her foster parents, with whom she has bonded, and who have adopted her oldersister and want to adopt her. Accordingly, the Family Court properly determined that itwould be in the subject child's best interests not to enter a suspended judgment, butinstead to terminate the parental rights of the father and mother, and free her for adoptionby her foster parents (see Matterof Jewels E.R. [Julien R.], 104 AD3d 773, 773 [2013]; Matter of Shaprea L.R. [MarioL.], 97 AD3d 587, 588 [2012]; Matter of Christopher T. [Margarita V.], 94 AD3d 900,900-901 [2012]; Matter ofWalter D.H. [Zaire L.], 91 AD3d 950, 951 [2012]).
We decline to reach the contentions improperly raised for the first time on appeal bythe father and the mother (seeKin Hwa Ku v City of New York, 106 AD3d 698, 699 [2013]; NYU Hosp. for Joint Diseases vCountry Wide Ins. Co., 84 AD3d 1043, 1044 [2011]).
The remaining contentions raised by the father are without merit. Rivera, J.P., Lott,Miller and Duffy, JJ., concur.