Opinion
82 A.D.3d 674 923 N.Y.S.2d 1 In re JAYDEN C. also known as Jayden R., A Child Under the Age of Eighteen Years, etc., Michelle R., et al., Respondents-Appellants, Community Counseling & Mediation, Petitioner-Respondent. No. 2011-02541 Supreme Court of New York, First Department March 31, 2011
Andrew J. Baer, New York, for Michelle R., appellant.
Kenneth M. Tuccillo, Hastings on Hudson, for Edwin C., appellant.
Law Offices of James M. Abramson, PLLC, New York (Dawn M. Orsatti of counsel), for respondent.
Cozen O'Connor, New York (Jill L. Mandell of counsel), attorney for the child.
GONZALEZ, P.J., FRIEDMAN, MOSKOWITZ, FREEDMAN, ROMÁN, JJ. Order of disposition, Family Court, New York County (Jody Adams, J.), entered on or about November 30, 2009, upon findings that respondent father's consent for the adoption of the subject child was not required and that respondent mother permanently neglected the child, terminated the mother's parental rights and transferred custody and guardianship of the child to petitioner agency and the Commissioner of Social Services for the purpose of adoption, unanimously affirmed, without costs.
The father's constitutional challenges to the statutes providing for notice and consent of an unwed father are unpreserved and we decline to consider them ( seeMatter of Kimberly Carolyn J., 37 A.D.3d 174, 175, 829 N.Y.S.2d 71 [2007], lv. dismissed 8 N.Y.3d 968, 836 N.Y.S.2d 540, 868 N.E.2d 222 [2007] ). In any event, the record establishes that the father appeared and did not object to his notice status and, further, that he did not maintain a substantial and continuing relationship with the child that would give rise to a protected interest ( see Matter of Raquel Marie X., 76 N.Y.2d 387, 401, 559 N.Y.S.2d 855, 559 N.E.2d 418 [1990], cert. denied 498 U.S. 984, 111 S.Ct. 517, 112 L.Ed.2d 528 [1990]; Matter of Pedro Jason William M., 45 A.D.3d 431, 847 N.Y.S.2d 17 [2007], appeal dismissed and lv. denied 10 N.Y.3d 804, 857 N.Y.S.2d 32, 886 N.E.2d 797 [2008]; Domestic Relations Law § 111[1][d] ).
The determination that it would be in the child's best interests to be freed for adoption is supported by a preponderance of the evidence ( see Matter of Star Leslie W., 63 N.Y.2d 136, 147-148, 481 N.Y.S.2d 26, 470 N.E.2d 824 [1984] ). There is no indication that the mother is capable of financially or emotionally caring for her son, and the record shows that the child has thrived in his preadoptive home, which he shares with his sibling, and where he has developed a strong bond with the foster mother ( see Matter of Octavia Lorraine O., 34 A.D.3d 258, 823 N.Y.S.2d 402 [2006] ). Furthermore, the mother did not ask the court to consult with the three-year-old child concerning guardianship, and the statute does not require such consultation ( see Social Services Law § 384-b[3][k] ).
A suspended judgment is not warranted under the circumstances because it is not in the best interests of the child to wait any longer for the mother to gain the ability to fulfill her parental obligations ( see Matter of Michael B., 80 N.Y.2d 299, 311, 590 N.Y.S.2d 60, 604 N.E.2d 122 [1992]; Matter of Juan A. [Nhaima D.R.], 72 A.D.3d 542, 898 N.Y.S.2d 838 [2010] ).