Matter of Cassandra Tammy S. (Babbah S.)

Matter of Cassandra Tammy S. v Babbah S. 2011 NY Slip Op 08212 Decided on November 15, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 15, 2011
Andrias, J.P., Friedman, DeGrasse, Freedman, Manzanet-Daniels, JJ.
6035 6035A

[*1]In re Cassandra Tammy S., and Another, Dependent Children Under Eighteen Years of Age, etc.,

and

Babbah S., et al., Respondents-Appellants, Episcopal Social Services, Petitioner-Respondent.




Frederic P. Schneider, New York, for Babbah S., appellant.
Geoffrey P. Berman, Larchmont, for Elizabeth P., appellant.
Magovern & Sclafani, New York (Joanna M. Roberson of
counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Marcia
Egger of counsel), attorney for the children.

Orders of disposition, Family Court, Bronx County (Allen Alpert, J.), entered on or about August 23, 2010, which, to the extent appealed from, upon findings that respondent father's consent for the adoption of his child was not required and that respondent mother abandoned the subject children, terminated the mother's parental rights to the subject children and transferred custody and guardianship of the children to petitioner agency and the Commissioner of Social Services for the purpose of adoption, unanimously modified, on the law and the facts, to vacate the orders of disposition, and remand for a new dispositional hearing regarding the best interests of the children, and otherwise affirmed, without costs.

The father's consent for the adoption of his child was not required since he admitted that he had not provided her with consistent financial support, despite having the means to do so (see Domestic Relations Law § 111[1][d]; Matter of Vanessa B. [Lebert Charles C.], 76 AD3d 912, 913 [2010]). The agency's alleged failure to instruct the father to provide financial support did not excuse him from doing so (see Matter of Marc Jaleel G. [Marc E.G.], 74 AD3d 689, 690 [2010]).

We reject the mother's claim that she was denied effective assistance of counsel with respect to the fact-finding proceeding (see People v Benevento, 91 NY2d 708, 714-715 [1998]). Given the mother's admission that she had no contact with the subject children or the agency during the relevant time period, she could not have been prejudiced by any failing on the part of her counsel (see Matter of Nikeerah S. [Barbara S.], 69 AD3d 421, 422 [2010]).

No evidence was presented at the dispositional hearing with respect to the suitability of [*2]the foster home or the desires of the children and foster parents. Indeed, the court's best interests determination rested exclusively on the arguments of counsel. Given the foregoing and evidence at the hearing that respondents' situation has improved, we remand for a new dispositional hearing with respect to the best interests of the children (see generally Matter of Patrick L. McC., 179 AD2d 220, 223 [1992]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 15, 2011

CLERK