In re the Guardianship of Michael Anthony F.

177 A.D.2d 1031

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1991
• Docket: Appeal No. 2
• Status: Published

Opinion

Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Monroe County Family Court for further proceedings, in accordance with the following memorandum: An adjudicated father, as intervenor, appeals from an order which adjudged that the child had been abandoned by the mother, transferred guardianship and custody to the Monroe County Department of Social Services (Agency) and authorized the Agency to consent to the adoption of the child without the consent of, or further notice to, the mother. The mother has not appealed from that order and the father is not aggrieved by it. Accordingly, the appeal is dismissed.

The father also appeals from a subsequent order, following a best interests hearing, which directed that the child be continued in the guardianship and custody of the Agency with specific placement in the Blocker foster home for the purpose of adoption by the Blockers. Although Family Court properly determined that the best interests of the child require that his guardianship and custody be continued in the foster home, the court erred in authorizing the adoption to proceed without making a specific finding that the father’s consent is not required or that his parental rights are terminated (see, Domestic Relations Law § 111 [1] [d] [i]-[iii]; Matter of Sommerville v Erie County Dept. of Social Servs., 163 AD2d 838, 839; Matter of Victoria K., 117 AD2d 968, 969). Accordingly, we remit the matter for a hearing on that issue.

The father’s constitutional challenges were not raised before Family Court and should not now be addressed for the first time on appeal (see, Melahn v Hearn, 60 NY2d 944, 945; Lang v Cohalan, 127 AD2d 17, 21, appeal dismissed 70 NY2d 744). The contentions lack merit in any event (see, Lehr v Robertson, 463 US 248, 256-268). (Appeal from Order of Monroe County Family Court, Sciolino, J.—Guardianship and Custody.) Present—Doerr, J. P., Denman, Green, Balio and Davis, JJ.