Opinion
2014-10-21
In re RASHI–MALIK OLATUNJI G., etc., A Dependent Child Under the Age of Eighteen Years, etc., Quashi G., etc., Respondent–Appellant, v. Children's Village, Petitioner–Respondent.
Larry S. Bachner, Jamaica, for appellant. Law Offices of James M. Abramson, PLLC, New York (Dawn M. Orsatti of counsel), for respondent.
Larry S. Bachner, Jamaica, for appellant. Law Offices of James M. Abramson, PLLC, New York (Dawn M. Orsatti of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (John A. Newbery of counsel), attorney for the child.
TOM, J.P., RENWICK, MOSKOWITZ, RICHTER, KAPNICK, JJ.
Appeal from order, Family Court, New York County (Clark V. Richardson, J.), entered on or about September 30, 2013, which, upon a finding that respondent father's consent was not required for the adoption of the subject child, and upon the mother's execution of a judicial surrender with respect to the subject child, ordered that petitioner, the Children's Village, and the Commissioner of Social Services of the City of New York are empowered to consent to the adoption of the child without further notice to, or consent of, the father, unanimously dismissed, without costs, as untimely.
The father's appeal is untimely, as his notice of appeal was filed beyond the time limit required by Family Court Act § 1113. Accordingly, it must be dismissed ( Matter of Brenner v. Brenner, 57 A.D.2d 813, 814, 394 N.Y.S.2d 703 [1st Dept.1977], lv. dismissed51 N.Y.2d 766, 432 N.Y.S.2d 374, 411 N.E.2d 793 [1980]; Matter of Catherine C. v. Billy D., 100 A.D.3d 1292, 954 N.Y.S.2d 504 [3d Dept.2012] ).
Were we to reach the merits, we would conclude that the Family Court properly determined that the father's admission, made through his counsel, that he had not provided any financial support for the child statutorily precluded any finding that his consent was required prior to the child's adoption by his foster parent (Domestic Relations Law § 111[1][d]; see also People v. McGraw, 40 A.D.3d 302, 302, 836 N.Y.S.2d 35 [1st Dept.2007], lv. denied9 N.Y.3d 878, 842 N.Y.S.2d 791, 874 N.E.2d 758 [2007]; DiCamillo v. City of New York, 245 A.D.2d 332, 333, 665 N.Y.S.2d 97 [2d Dept.1997] ). Furthermore, he may not now seek a hearing on the issue, as he did not seek one before the Family Court, and instead, in light of the determination that he was a notice-only father, sought only a best interests hearing ( see Matter of Jamize G., 40 A.D.3d 543, 544, 838 N.Y.S.2d 499 [1st Dept.2007], lv. denied9 N.Y.3d 808, 844 N.Y.S.2d 174 [2007] ).
Finally, the father's testimony that he was incarcerated, that he was unemployed and relied on his mother for five years, that he had virtually no contact with the child, and his lack of any plan to care for the child other than a speculative desire to find employment after his release, supports the Family Court's determination that it was in the best interests of the child to be freed for adoption. The record reveals that the child would be adopted by his foster parent, with whom the nearly four year-old child has resided his entire life, and who, unlike the father, is in a position to support and care for the child ( see e.g. Matter of Shatavia Jeffeysha J. [Jeffrey J.], 100 A.D.3d 501, 954 N.Y.S.2d 60 [1st Dept.2012] ).