IN RE: GABRIELLE G. (Anonymous) and Another (2019)

Orders of disposition, Family Court, New York County (Karen I. Lupuloff, J.), entered on or about July 10, 2017, which, to the extent appealed from as limited by the briefs, determined that respondent's consent was not required for the adoption of the subject children, unanimously affirmed, without costs.

Respondent admitted that he did not provide the children with financial support after they were placed into foster care(see Domestic Relations Law § 111[1][d];  Matter of Rickelme Alfredo B. [Ricardo Alfred B.], 132 A.D.3d 490, 19 N.Y.S.3d 20 [1st Dept. 2015] ).  Petitioner was not required to inform respondent of his financial support obligation (Domestic Relations Law § 111[1][d];  see Matter of Tiara J. [Anthony Lamont A.], 118 A.D.3d 545, 988 N.Y.S.2d 56 [1st Dept. 2014] ).

Respondent failed to demonstrate that he received ineffective assistance of counsel (see Matter of Asia Sabrina N. [Olu N.], 117 A.D.3d 543, 544, 985 N.Y.S.2d 560 [1st Dept. 2014] ).  He contends that his attorney did not make a sufficient effort to show that he lacked the financial ability to support the children.  However, counsel's decision not to question respondent about his financial circumstances may have been strategic (see People v. Sargsyan, 71 A.D.3d 401, 894 N.Y.S.2d 867 [1st Dept. 2010] ).  Moreover, respondent presented no evidence that his proposed line of questioning had a realistic chance of succeeding (see People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004] ).

Respondent's argument that Domestic Relations Law § 111(1)(d) violates the equal protection clause by imposing on unwed fathers a duty it does not impose on married fathers is improperly raised for the first time on appeal.  We have considered respondent's remaining arguments and find them unavailing.

The Decision and Order of this Court entered herein on November 8, 2018 (166 A.D.3d 416, 87 N.Y.S.3d 154 [1st Dept. 2018] ) is hereby recalled and vacated (see M–6431, 2019 WL 348738 decided simultaneously herewith).