In re Marc Jaleel G.
Matter of Marc Jaleel G. v Marc
E.G.
2010
NY Slip Op 05692
Decided
on June 29, 2010
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 June 29, 2010
Tom,
J.P., Sweeny, Catterson, McGuire, RomÁn,
JJ.
3162
3163 M2588
[*1]In
re Marc Jaleel G., A Dependent Child Under Eighteen
Years of Age, etc.,
and
Marc E.G., Respondent-Appellant,
George E. Reed, Jr.,
counsel), for respondent.
Tamara
A. Steckler, The Legal Aid
Society,
Egger of counsel), Law Guardian.
Order
of disposition, Family Court, New York County (Gloria Sosa-Lintner,
J.), entered on or about April 28, 2009, which concluded respondent's consent
was not required for the adoption of his son, and committed custody and
guardianship of the child to petitioner and the Commissioner of Social Services
for the purpose of adoption, unanimously affirmed,
without costs.
Because
respondent did not maintain "substantial and continuous or repeated
contact with the child" and failed to provide support for him while in
foster care (Domestic Relations Law § 111[1][d]), his
consent to placement for adoption was not required (Matter of Aaron P., 61 AD3d
448 [2009]). His repeated incarceration did not absolve him of responsibility
for support and maintaining regular communication (Matter of Sharissa G., 51 AD3d 1019, 1020 [2008]). Nor was he excused
from paying financial support because the agency had not instructed him to do
so. The unexcused failure to contribute such support for most of his son's life
is fatal to respondent's claim that his consent to an adoption is required (see
Aaron P., 61 AD3d 448 [2009]).
Respondent
spent about half of his son's first eight years in jail, and did not maintain
regular contact with him for much of that period. Although contact increased
substantially after his release from prison in August 2006, these intermittent
periods of contact do not amount to the regular efforts at communication
contemplated by § 111 (see Aaron P., 61 AD3d at 448; Matter of Jonathan Logan
P., 309 AD2d 576 [2003]).
Respondent's
contention that he was entitled to treatment as a "consent father"
because [*2]the agency had directed him to engage in parenting skills classes
and other services as a prerequisite to obtaining custody is unavailing, as the
agency was not required to proceed under one theory as opposed to another. Even
if the agency had petitioned to terminate parental rights on the ground of
permanent neglect, it would not have been precluded from withdrawing that claim
and proceeding on the alternative theory that respondent was a "notice
father" (Matter of Dominique P., 14 AD3d 319 [2005]). The agency in fact
did proceed against respondent on the theory he was a notice father. The
court's best interests determination was supported by a preponderance of the
evidence (see Matter of Chandel B., 58 AD3d 547, 548
[2009]).
We
have considered respondent's remaining contentions and find them unavailing.
M-2588 - In re Marc Jaleel G.
Motion
to strike brief and for other related relief denied.
THIS
CONSTITUTES THE DECISION AND ORDER
OF
THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:
JUNE 29, 2010
CLERK