IN RE: ALICIA MONIQUE S. (2009)

Order, Family Court, New York County (Susan R. Larabee, J.), entered on or about May 19, 2008, which denied respondent father's motion to vacate a prior dispositional order terminating his parental rights and committing the child to the custody of petitioner's predecessor for the purpose of adoption, unanimously affirmed, without costs.

Upon conclusion of the dispositional hearing and prior to the court's 2004 order, the child was removed from her pre-adoptive foster home due to a founded report of excessive corporal punishment by the foster mother. Respondent has failed to meet his heavy burden of showing this evidence could not have been discovered earlier with due diligence (see H & Y Realty Co. v. Baron, 193 A.D.2d 429, 430, 597 N.Y.S.2d 343 [1993] ). Moreover, he failed to establish that this evidence, “if introduced at the trial, would probably have produced a different result” (CPLR 5015[a][2] ), as the child's relationship with her then pre-adoptive foster family was one of six factors considered by the court in reaching its dispositional determination; there is no indication, in the record of that proceeding, of progress by respondent, who did not present any evidence at the hearing and had only sporadic visitation with the child (cf. Matter of Christina Janian E., 260 A.D.2d 300, 689 N.Y.S.2d 58 [1999] ). Moreover, the mere absence of “a viable adoptive resource at the time of the termination” of parental rights “does not become a reason to subsequently vacate the order terminating the parental rights of the parent” (Matter of Anthony S., 178 Misc.2d 1, 8, 675 N.Y.S.2d 759 [1998] ).

Given respondent's failure to make any showing of his ability to care for the child or address the court's earlier concerns, there would have been no purpose in ordering a new dispositional hearing as to the child's best interests (see Matter of Shamia J., 188 A.D.2d 344, 591 N.Y.S.2d 769 [1992], lv. dismissed 81 N.Y.2d 954, 597 N.Y.S.2d 939, 613 N.E.2d 971 [1993] ).

We have considered respondent's remaining arguments and find them unavailing.