Matter of Bryant Angel Malik J. (Bryant J.)

Matter of Bryant Angel Malik J. (Bryant J.) 2010 NY Slip Op 06763 [76 AD3d 936] September 30, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, October 27, 2010

In the Matter of Bryant Angel Malik J., an Infant. Bryant J., Sr., Appellant; Edwin Gould Services for Children and Families, Respondent.

—[*1] Wendy Abels, New York, for appellant.

John R. Eyerman, New York, for respondent.

Karen Freedman, New York (Doneth N. Gayle of counsel), Law Guardian.

Order of disposition, Family Court, New York County (Jody Adams, J.), entered on or about July 29, 2008, which, to the extent appealed from, in granting the petition to terminate the parental rights of the subject child's mother and to transfer custody and guardianship to petitioner and the Commissioner of Social Services for the purpose of adoption, denied appellant the opportunity to withhold consent to such adoption, unanimously affirmed, without costs.

Appellant's contention that he received ineffective assistance of counsel, based on his attorney's concession that he was simply a "notice" father under Domestic Relations Law § 111-a, without pressing for a hearing specifically on his entitlement to withhold consent to the child's adoption under section 111, is unfounded. After investigating the facts and presumably discussing the matter with her client, counsel made a conscientious, strategic decision not to request a hearing on the issue of consent. This does not provide a basis for finding ineffective assistance of counsel (see Matter of Matthew C., 227 AD2d 679, 682-683 [1996]). Evidence adduced at the hearing demonstrated, in any event, that any effort to establish that appellant was a "consent" father would have been unsuccessful. He never maintained substantial and continuous or repeated contact with the child as required by the statute. Appellant's incarceration did not absolve him of his responsibility for supporting the child and maintaining regular communications (Matter of Baby Boy C., 13 AD3d 619 [2004]). Concur—Mazzarelli, J.P., Sweeny, Catterson, DeGrasse and Manzanet-Daniels, JJ.