In re Malik J.

76 A.D.2d 936, 908 N.Y.S.2d 48

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 30, 2010
• Status: Published

Opinion

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.E, Sweeny, Catterson, DeGrasse and Manzanet-Daniels, JJ.