IN RE: Charle Chiedu E. (Anonymous)

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Charle Chiedu E. (Anonymous), also known as Charles E. (Anonymous).  Heart Share Human Services of New York, etc., petitioner-respondent, Chiedu E. (Anonymous), respondent-respondent, et al., respondent;  Steven Banks, attorney for the child, nonparty-appellant.

2010–07253 (Docket No. B–9073–05)

Decided: September 27, 2011

DANIEL D. ANGIOLILLO, J.P. L. PRISCILLA HALL LEONARD B. AUSTIN JEFFREY A. COHEN, JJ. Steven Banks, New York, N.Y. (Tamara A. Steckler and Claire V. Merkine of counsel), nonparty-appellant pro se. Wingate, Kearney & Cullen, LLP, Brooklyn, N.Y. (Richard J. Cea and George O'Loughlin of counsel), for petitioner-respondent. Anthony Augustus, Jamaica, N.Y., for respondent-respondent.

Argued—September 12, 2011

DECISION & ORDER

In a proceeding pursuant to Social Services Law § 384–b to terminate parental rights, the attorney for the child appeals, as limited by his brief, from so much of an order of the Family Court, Queens County (Salinitro, J.), dated July 8, 2010, as, after a fact-finding hearing, in effect, denied that branch of the amended petition which was for a determination that the consent of the biological father, Chiedu E., was not required for the child's adoption pursuant to Domestic Relations Law § 111(1)(d).

ORDERED that the order is reversed insofar as appealed from, on the law and on the facts, without costs or disbursements, and that branch of the amended petition which was to determine that the consent of the biological father was not required for the child's adoption pursuant to Domestic Relations Law § 111(1)(d) is granted.

The Family Court's determination that the consent of the biological father, Chiedu E., to the adoption of the subject child was required was not supported by the record before it (see Lehr v. Robertson, 463 U.S. 248, 262;  Matter of Robert O. v. Russell K., 80 N.Y.2d 254, 262;  Matter of Raquel Marie X., 76 N.Y.2d 387, 401, cert denied sub nom.  Robert C. v Miguel T., 498 U.S. 984;  Matter of Joseph Kenneth B., 47 AD3d 809;  Matter of Baby Boy C., 13 AD3d 619, 620–621).   The biological father failed to meet his burden of establishing that he maintained substantial and continuous or repeated contact with the child through the payment of support and either regular visitation or other communication with the child (see Domestic Relations Law § 111[1][d];  Matter of Robert O. v. Russell K., 80 N.Y.2d at 264;  Matter of Andrew Peter H. T., 64 N.Y.2d 1090, 1091;  Matter of Marc Jaleel G. [Marc E.G.], 74 AD3d 689, 690;  Matter of Jamize G., 40 AD3d 543, 544;  Matter of Jason Brian S., 303 A.D.2d 759, 760;  see also Matter of Vanessa Ann G.-L., 50 AD3d 1036, 1037–1038).

Accordingly, the Family Court should have granted that branch of the amended petition which was for a determination that the consent of the biological father was not required for the child's adoption pursuant to Domestic Relations Law § 111(1)(d).

In light of the foregoing, we need not reach the parties' remaining contentions.

ANGIOLILLO, J.P., HALL, AUSTIN and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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