In re Infant D.

316 N.E.2d 330, 34 N.Y.2d 806, 359 N.Y.S.2d 43, 1974 N.Y. LEXIS 1513

Opinion

Memorandum. The court affirms the order of the Appellate Division leaving the child with the prospective adoptive parents ón the limited ground that the hearing court made a finding of ultimate fact that the mother had abandoned the child and that finding remains undisturbed by the Appellate Division. This court is without power to disturb that determination because there is some evidence, though barely enough, to sustain it. And because we may not review the ultimate finding of fact on the issue of abandonment, we, of course, abstain from expressing any view as to whether we agree with that finding.

It is appropriate to note, however, that the finding of the hearing court that the mother was unfit is not supportable as a matter of law by the evidence in the record.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Rabin and Stevens concur in memorandum.

Order affirmed, with costs and disbursements to appellant.