Opinion
Decided March 19, 2004.
Shafter Shafter, Esqs., Garden City, NY, for petitioner.
Jacqueline Carway, Esq., Mineola, NY, for respondent.
Patricia Latzman, Esq., Port Washington, NY, law guardian.
The following is the court's decision after trial.
In this agency adoption proceeding, the child to be adopted is Michael, a 9-year-old boy who has lived continuously with the adoptive couple since he was placed with them in January 1998, when he was not quite three years old. His birth father, who admitted to having several aliases and was not married to the birth mother, will be referred to in this decision as "Mr. W." Mr. W., who has never seen Michael, contends that the adoption cannot take place without his consent, which he is not willing to provide. On the contrary, Mr. W. indicated on the record that he wants to assume full custody of Michael as soon as his current period of incarceration ends, which he represented at trial was imminent. The adoptive parents, Mr. and Mrs. T., allege that Mr. W. has not satisfied the criteria of Domestic Relations Law § 111(1)(d) and he therefore has no right to consent to or object to Michael's adoption. They argue that if the court should find that Mr. W. has satisfied the criteria of Domestic Relations Law § 111(1)(d), then he has abandoned Michael pursuant to Domestic Relations Law § 111(2)(a), obviating the need for his consent. The record amply demonstrates Mr. W.'s failure to satisfy the statutory requirements of Domestic Relations Law § 111(1)(d) which are a condition precedent to an unwed father's right to have a say in the adoption of his child; his consent to the adoption is, therefore, unnecessary.
Michael was born prematurely on February 27, 1995 to Stephanie S., who was married at the time to a Mr. S., but was separated from him. They later divorced. The testimony of both Stephanie and Mr. W. is that Mr. W. knew he was the child's father well before Michael was born. The testimony also reveals that Michael remained in the hospital for up to three months after his birth. There is no dispute that Mr. W. did not visit Michael or Stephanie in the hospital. He claimed that he would have liked to have visited his son, but his mother had recently died and he did not want to see his son connected to wires and tubes. Mr. W. testified that at this time he was employed as a window installer, while Stephanie's memory was that he was dealing drugs for a living. Their respective recollections regarding Mr. W.'s financial contributions are also quite disparate, he claiming that he gave Stephanie her money "all the time," she claiming that he never gave her any money and that his claim to the contrary is "a lie."
After Michael's release from the hospital, Mr. W.'s efforts at parenting consisted of calling Stephanie's mother on the telephone and asking her to have Stephanie bring Michael to come and visit him. Stephanie, upset with Mr. W. for his failure to express a greater interest in his son, declined the invitation. While the record does not reveal any impediment to him going to visit them, he never made the effort to do so. Shortly thereafter, Mr. W. was arrested and incarcerated. He advised Stephanie of this by letter.
Both Mr. W. and Stephanie agree that he wrote her often from jail, but her testimony was unshakable that he never gave her any money at all, never offered to help with any expenses, never offered to provide for Michael in any way, never indicated that anyone in his family was prepared to care for Michael, and never had any plans for Michael. The only gift he ever sent Michael was one handkerchief on one occasion. Mr. W. testified that the reason he did not communicate until 2002 with the agency which had custody of Michael was that he believed that Michael was being cared for by Stephanie's sister. In fact, there is one letter in evidence indicating that Stephanie did inform Mr. W. that Michael was staying with her sister. At the time she said it, it was true, Michael had stayed with Stephanie's sister for a short time after he first went into foster care in November 1995. It is also clear that Mr. W. learned that Michael was in foster care at the very latest in August 1999, although he probably knew or should have known much earlier. When asked why he didn't keep all the letters from Stephanie, Mr. W. testified that he didn't keep them because "a lot of times [Stephanie] was very misleading. The mother was very misleading, so I would discard the letter." Either Mr. W. was lying about Stephanie's deceiving him into believing that Michael was still staying with her sister, as the court believes he was, or else he was telling the truth about not believing her. But, if Mr. W. didn't believe the mother was telling the truth about Michael's whereabouts, he made no discernible effort to find his son or find out who was caring for him.
Mr. W. also testified that he wrote "tons" of letters to the foster care agency that had custody of Michael, and sent toys, clothes, paintings, stuffed animals, arts and crafts, and things he bought out of catalogues. The record does not explain how Mr. W. had any idea what size clothing to buy for a child he had never seen. To the contrary, a representative from the foster care agency testified that the agency's records reveal that the agency received a total of four letters from Mr. W., all in the period from February 8, 2002 to March 9, 2002. There were no gifts or any of the other items Mr. W. claims he sent, except for a single cartoon painting, intended for Michael, which depicts a man in prison uniform escaping from prison with the inscription, "I'm comin' for you my . . . son." The agency did not forward that item to the adoptive parents. Furthermore, despite Mr. W.'s claim that he wrote many letters to the agency which predate the February 8, 2002 letter, he began that letter: "Dear Ms. Taylor, Please Take Notice, that I am forwarding you and your Child-Care Agency, this letter of Introduction . . ." Also, he was unable to produce a copy of any prior letter.
Despite Mr. W.'s protestations to the contrary, the credible evidence establishes that Mr. W.'s first contact with the foster care agency having custody of Michael was in February 2002, when Michael was approximately three weeks short of his seventh birthday, even though Mr. W. was aware that Michael had been in foster care since at least August 1999. Mr. W. also had some familiarity with the foster care system. His first child, whom he fathered at the age of 14, spent a portion of her childhood in the foster care system. Mr. W. claims to be on good terms with this daughter and with all of his children, though none appeared to testify on his behalf at the trial.
The court also recognizes that Mr. W. made several attempts to establish his paternity of Michael by bringing three separate proceedings in Family Court over a period of four to five years. He was ultimately adjudicated to be Michael's father in January 2002; the petition to adopt Michael now before this court was filed in May 2002.
The consent of the father of a non-marital child to the child's adoption is not required unless the father has established his right to consent to or object to the adoption of the child. He does this by satisfying the requirements of Domestic Relations Law § 111(1)(d), which provides that consent to adoption is necessary:
(d) Of the father, whether adult or infant, of a child born out-of-wedlock and placed with the adoptive parents more than six months after birth, but only if such father shall have maintained substantial and continuous or repeated contact with the child as manifested by: (i) the payment by the father toward the support of the child of a fair and reasonable sum, according to the father's means, and either (ii) the father's visiting the child at least monthly when physically and financially able to do so and not prevented from doing so by the person or authorized agency having lawful custody of the child, or (iii) the father's regular communication with the child or with the person or agency having the care or custody of the child, when physically and financially unable to visit the child or prevented from doing so by the person or authorized agency having lawful custody of the child. The subjective intent of the father, whether expressed or otherwise, unsupported by evidence of acts specified in this paragraph manifesting such intent, shall not preclude a determination that the father failed to maintain substantial and continuous or repeated contact with the child. In making such a determination, the court shall not require a showing of diligent efforts by any person or agency to encourage the father to perform the acts specified in this paragraph. A father, whether adult or infant, of a child born out-of-wedlock, who openly lived with the child for a period of six months within the one year period immediately preceding the placement of the child for adoption and who during such period openly held himself out to be the father of such child shall be deemed to have maintained substantial and continuous contact with the child for the purpose of this subdivision. (emphasis added by court).
On the record before it, the court need not consider the allegation that Mr. W. abandoned Michael, because it is only after the birth father establishes his right of consent to the adoption, by satisfying both the support and the communication provisions of the statue, that the court proceeds to determine whether he has forfeited that right by abandoning the child (Matter of Andrew Peter H.T., 64 NY2d 1090, 1091).
Here, the credible evidence is that Mr. W. never made any financial contribution to or for Michael. His claim that he gave the birth mother money "all the time" before he was incarcerated is not credible and furthermore was forcefully rebutted by her. Later on in his testimony he defended his failure to provide financial support for Michael not on grounds of his incarceration, but on the fact that he was never ordered to do so. He did not offer support voluntarily. His position does not constitute a valid excuse for his failure to pay support. ( Matter of Jason Brian S., 303 AD2d 759).
While Mr. W.'s efforts at communication exceed his attempts at financial support, they still fall far short of the mark which would give him the right to object to Michael's adoption. As indicated above, the statute requires substantial and repeated or continuous contact for the father of a non-marital child placed for adoption more than six months after birth to object to the adoption of his child. Here, Mr. W. has never even seen Michael. The testimony reveals that he has spoken to Michael on the telephone three times, each occasion lasting from five to ten minutes. His few letters to Stephanie, written years ago, do not suggest that he was interested in Michael, certainly he was not interested in supporting Michael, and he had no plans for his future. There is no evidence that Mr. W. ever inquired of anyone how Michael was doing in school, what activities he liked, or if he had a favorite hobby or pastime. His four letters to the foster care agency, written when Michael was almost seven years old, came in a flurry of four letters in as many weeks. There was one phone call from Mr. W. months later in which claimed he was attempting to establish visitation with Michael. Learning by this time that Mr. W. had been adjudicated the father in January 2002, the agency returned the call, but Mr. W. never followed up on the agency's invitation to come in for a meeting. In explanation he testified that his lawyer told him not to go. However, he did not call the lawyer as a witness and the court does not believe his testimony on this point.
Mr. W.'s "parental rights are derived from the fact that he is the [birth] father of this child. The status of these rights is governed and determined not by the artificial time period established by an adjudication of paternity, but by his own actions" ( Matter of David S., NYLJ, August 30, 1999 at 25). Again, if an unwed father fails to maintain substantial and continuous or repeated contact with the child, his consent is not necessary and abandonment need not be proven ( Matter or Kaseim H., 230 AD2d 796; Matter of Tiffany Lynn G., 259 AD2d 616). The fact of his incarceration does not relieve him of that responsibility ( Matter of Kianna C., 292 AD2d 380). Mr. W.'s attempts at establishing a relationship with his son once every twelve months or so do not satisfy the statute's requirement of continuous and substantial communication with the child. Substantial and continuous or repeated contact with the child must mean more than simply alleging that someone may have misled you about where your child was living. Continuous or repeated contact is manifested by "payment of fair and reasonable support, together with regular visitations or communications with [the] child" (emphasis added) ( Matter of James Q., 240 AD2d 841). So, "when a father demonstrates no significant responsibility with respect to daily supervision, education, protection or care of the child, consent will not be required. Thus, a biological link without coming forward to assume parental responsibility is insufficient" ( Matter of Stephany G., NYLJ, July 2, 1995 at 25). Also, "parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring" ( Lehr v. Robertson, 463 US 248, 260, quoting from dissent in Caban v. Mohammed, 441 US 380, 397). Mr. W. has absolutely no relationship with Michael, certainly not an enduring one, and that is due to his own actions.
The court finds that Mr. W. has not satisfied the requirements of Domestic Relations Law § 111(1)(d). His consent is not necessary and the adoption may proceed to finalization in the normal course.