Opinion
A-00356/06.
Decided on June 3, 2008.
Karina E. Alomar, Esq., for the Petitioner Mother, Ridgewood, New York, Walter E. Anderocci, Esq., for the Respondent Father, Brooklyn, New York
Hilary Chacker, Esq., Law Guardian Children's Law Center, Brooklyn, New York.
In this combined adoption and visitation proceeding, the mother is seeking to have her son, T.N.B., adopted by her husband. Respondent father is opposing the adoption and seeking visitation. The Law Guardian opposes the mother's petition and requests a forensic evaluation of the parties and the child to assist in the determination of whether visitation between the subject child and respondent father would be in the best interests of the child.
The issue before the Court is whether respondent father has the right to veto the adoption of his now eight-year-old son. In order to answer this question, the Court must conduct a two-part analysis. First, the Court must determine whether respondent father ever obtained a qualifying interest by maintaining substantial and continuous contact with the child by paying child support according to his means and visiting at least monthly when not prevented from doing so by the child's custodian. Second, if he did acquire such an interest, the Court must then determine whether he thereafter lost or abandoned that interest by his subsequent failure to pay support, visit or communicate for a period of six months prior to the commencement of the adoption proceeding.
If the Court finds that respondent father has the right to veto the adoption, the adoption will fail since he will not consent. In that case, the Court will be required to determine whether visitation between respondent father and the subject child is in the child's best interests.
If, on the other hand, the Court finds that respondent father attained the status of a "consent father" or, having attained that status, he forfeited or abandoned it by failing for a period of six months to visit or communicate with the child or the child's custodian although able to do so, the Court will conclude that respondent is a "notice father." In that case, the Court will thereafter be required to determine whether the proposed adoption is in the best interests of the child.
DRL § 111(a) (2) (d) provides that notice shall be given to any "person who is recorded on the child's birth certificate as the child's father." In the instant case, respondent father is recorded on the child's birth certificate as the child's father; therefore, he is, at a minimum, entitled to notice.
Factual Background
Petitioner mother and respondent father met in July 1997. T.N.B. was born on October 15, 1999. Respondent father was present at the hospital. He signed an acknowledgement of paternity and his name was placed on the child's birth certificate. During the period that followed, respondent visited regularly and contributed to the child's support, however, the parties never married or lived together.
In 2001, respondent father's wife of seven years, Lynette B., and their five children, M. (date of birth July 9, 1984), T. (date of birth June 9, 1987), T. (date of birth April 12, 1992), T. (date of birth April 4, 1996), and T. (date of birth May 21, 2003), arrived in the United States from Guyana to reunite with respondent as a family. The mother testified that she knew that respondent was married when she first met him, although he told her that the marriage was over. The mother testified that respondent's family arrived in April or May 2001. She testified that she learned of their arrival when she received an angry message on her telephone answering machine from respondent's wife. According to the mother, after that, in the spring 2001, the parties' relationship ended, although respondent continued to call her to discuss the child during the months that followed.
According to respondent father, his wife and children arrived in this country in August 2001. He testified that he told the mother about their arrival on August 8, 2001. He testified that he thereafter stayed at the mother's home overnight, once in October 2001 and once in November 2001. In addition, he testified that he spent part of Thanksgiving Day 2001 with the mother and the child.
In June 2001, the mother met her current husband, D.R., Sr. The following year, in June 2002, the mother moved out of her apartment located at 636 Lexington Avenue and in with Mr. R. at his residence located at 632 Lexington Avenue. When the mother moved, she submitted a change of address notification form to the United States Post Office. She changed her home telephone number but kept the same cell phone number, the same job, the same work address and the same telephone number at work. The mother notified her landlord about her move. She testified that after her move, he occasionally stopped by at her new apartment to bring mail that was mistakenly delivered to the old address.
On October 28, 2002, the mother gave birth to her second child, D.R., Jr. Shortly thereafter, the mother stopped accepting respondent's contributions towards T.N.B.'s support, returning the last two checks that he sent in November and December 2002.
On February 2, 2005, the mother married D.R., Sr. Thereafter, by letter dated October 26, 2005, the mother's attorney notified respondent of the mother's intent to seek a stepparent adoption.
On November 3, 2005, respondent father filed a petition seeking visitation. In his petition, respondent alleged that he "did everything for the child." He also alleged that "the [mother] disappeared with the child." He stated that he only learned of her whereabouts when he received notification that the mother intended "to have his rights terminated as the father of the child, so that the child can be adopted." When he filed his petition, the court clerk instructed respondent father that he would be required to effectuate personal service upon petitioner mother. He informed the clerk that this would be impossible, since he did not know her home address. The clerk informed him that it was his obligation to effectuate service and that the court could not serve the papers for him. According to respondent's testimony, he had previously attempted to learn the mother's home address on many occasions by asking mutual friends and a family member. Although his prior efforts had been unavailing, he testified that one of the parties' mutual friends finally gave him the mother's home address when he told her: "This time, I really need your help."
On February 3, 2006, petitioner mother and her husband filed a stepparent adoption. A hearing was conducted over the course of 10 trial dates, beginning on July 14, 2006 and ending on May 21, 2008.
The Hearing
During the hearing both parties testified. In addition, petitioner mother called the maternal grandmother and her husband to testify. Neither respondent father nor the Law Guardian presented any additional witnesses.
During petitioner mother's testimony, she acknowledged that respondent father contributed to the child's support and visited regularly during the first 18 months of the child's life. She contended, however, that respondent father never shouldered any significant responsibility for the child's daily supervision, education, protection or care. She also noted that respondent father has not even seen the child since he was an infant and that he has not contributed to his support for six years.
Respondent father disputes the mother's assertions and contends that he paid support and visited regularly until the mother prevented him from doing so. He introduced 14 cancelled checks into evidence. These checks document the amounts he sent to petitioner from 2000 to 2002, establishing that he made total payments in the sum of $2,560.
For the year 2000, he documented one payment in the sum of $150. For the year 2001, he documented three separate payments ($150 $150 $160), in the total sum of $460. For the year 2002, he documented 10 payments (9 payments of $200 and one payment of $150), in the total sum of $1,950.
He asserts that he never evinced an intent to forgo his parental rights and responsibilities. He insists that the mother deliberately thwarted his efforts to maintain a relationship with the child by relocating, changing her home telephone number, returning his checks for child support and instructing family members and friends not to disclose her whereabouts. He believes that these facts, coupled with the efforts that he made to maintain contact, including the filing of a visitation petition prior to the filing of the adoption petition, satisfy the statutory requirements and establish that his consent is required before the child can be adopted.
The mother dismisses respondent father's assertions as being little more than a flicker of interest intended simply to block the adoption by the stepfather, rather than assume custody himself. She denies that she ever made any effort to conceal her whereabouts. She emphasizes that she always maintained the same employer, the same place of employment, the same telephone number at work and the same cell phone number. She notes that she moved only once after the parties separated and that even then it was only to the building next door on the same block. In addition, she contends that respondent always had the ability to contact her through her employer, family members or mutual friends. In any event, the mother asserts that the adoption is in the child's best interests since it will finally give legal recognition to their family unit, which has been in place for six years and is the only family the child has ever known.
According to petitioner's testimony, the last time that respondent visited with the child was in December 2001, after he returned from a trip to Guyana. The mother acknowledged, however, that respondent might have seen the child after that when he was in the care of one particular babysitter. The mother testified that that babysitter stopped caring for the child in the fall 2002, when he started school.
Respondent father testified that he did, in fact, continue visiting the child at the babysitter's home during January, February and March of 2002, once or twice each month. According to respondent, the last time he saw the child was at the babysitter's home on March 29, 2002.
Respondent father testified that he repeatedly attempted to locate petitioner and the child after they moved in with Mr. R. He said that he repeatedly asked the maternal grandmother and mutual friends, the C.s, for contact information. According to respondent, he asked Mr. and Ms. C. for this information more than 25 times. In addition, he testified that he asked the maternal grandmother for help every time he saw her. According to respondent's testimony, the maternal grandmother repeatedly stated that she would assist him in seeing the subject child, although she never actually did so.
Respondent father acknowledged that although he knew other members of the mother's family, including the maternal grandfather and the mother's siblings, he never asked them for the mother's home address or telephone number. He testified that he never attempted to reach the maternal grandfather by telephone because he did not have his telephone number. He said that he once went to his home but that he found no one there. He also testified that he knew the mother's siblings who resided in Guyana and that he usually visited or called them when he traveled to that country. Nevertheless, he testified that he had not called or visited them to inquire about the mother or the child, during the two trips he took to Guyana subsequent to the parties' separation. According to respondent both trips had been brief. He testified that he went there to attend family funerals and that he did not have time to call or visit.
Respondent father testified that after a telephone conversation with petitioner on January 6, 2003, he never again attempted to call her at work; nor did he ever go to her place of employment. He said that the mother had asked him not to call her again at work, asserting that if he did she might lose her job. According to respondent, the reason he was not more aggressive in his efforts to contact the mother or the child was that he was waiting for the maternal grandmother to help him.
Respondent acknowledged that after January 2003, he never sent any cards, gifts, letters or support payments to the mother at her place of employment or her prior home address. He also acknowledged that he never sent any cards, gifts, letters or support payments to the maternal grandmother or the C.s with a request that they forward them to the mother or the child. He acknowledged that he never hired a private investigator or contacted the post office or the Department of Motor Vehicles in an attempt to learn the mother's new home address. He admitted that although he knew respondent mother's former landlord, from when she resided at 636 Lexington Avenue, he never asked him for her forwarding address.
The maternal grandmother testified that she and respondent maintained contact after the parties separated. They spoke on the telephone, visited at each other's homes and at the home of a maternal cousin. She testified that when they were together they talked about friends and family members. She testified that he occasionally asked her how the child was doing but that he never expressed an interest in seeing him. She testified that he said that he would reestablish contact "when the time was right." She testified that respondent never asked her for the mother's new home address. In any event, she stated that he always knew how to find her grandson since he knew where her daughter worked and her telephone number at work, as well as her cell phone number.
The maternal grandmother testified that between 2001 and the present, she moved several times. Nevertheless, she testified that she always kept respondent apprised of changes in her address and that he had visited her current apartment on several occasions. According to the maternal grandmother's testimony, October 20, 2004 was the last time that respondent spoke with the child. On that date, the child called the maternal grandmother while respondent was at her home, visiting for her birthday. She testified that after she finished speaking with her grandson, she handed the telephone to respondent and that the two spoke briefly.
LEGAL ANALYSIS
1.The Rights of Non-Marital Fathers
In Stanley v Illinois ( 405 US 645) and its progeny ( Quilloin v Walcott, 434 US 246; Caban v Mohammed, 441 US 380; Lehr v Robinson, 463 US 248), the United States Supreme Court established the right of certain non-marital fathers to veto the adoption of their children. The fathers in Stanley and Caban were unmarried fathers who had previously had custodial relationships with their children and had actively participated in their lives. Accordingly, the Court held that the fathers had "developed parent-child relationship[s]," which deserved the same degree of protection as married fathers and unmarried mothers. In contrast, the fathers in Quilloin and Lehr had never had custodial relationships with their children. They had never paid support on a regular basis or attempted to enforce their rights through court intervention prior to learning of the proposed adoptions. Consequently, the Court held that they had only "potential relationships" and that their consent was not required before their children could be adopted.
In Stanley ( 405 US 645, supra), the father had lived with the mother on-and-off for 18 years, during which time they had three children. The father had supported the mother and the children. Nevertheless, under then applicable state law unmarried fathers were presumed unfit and their children became wards of the state upon the death of their mothers. Accordingly, after the mother's death, as the result of a proceeding initiated by the state, the children were declared wards of the state and placed with court-appointed guardians.
The father appealed, claiming that he had never been proven to be unfit and that, since married fathers and unmarried mothers could not be deprived of the custody of their children absent a showing of unfitness, he had been deprived of due process and equal protection. The Supreme Court agreed to the extent of holding that the state statutory scheme violated the U.S. Constitution, 14th Amendment, Due Process Clause since unmarried fathers, like other parents, are entitled to a hearing on their fitness before their children can be taken from them.
Similarly, in Caban v Mohammed ( 441 US 380, supra), the mother and father had lived together for five years. During that time they held themselves out as husband and wife and had two children. The father's name was placed on the children's birth certificates. When the parties separated, one child was two-and-one-half years old and the other was four. After the father moved out, he maintained consistent contact with the children and contributed to their support. The Supreme Court found the father's relationship with his children to be constitutionally protected and held that he retained the right to veto their adoption by withholding his consent.
In contrast, in Quilloin v Walcott ( 434 US 246, supra), the mother had always been the sole custodial parent. She and her husband filed a stepparent adoption petition when the child was 11 years old. It was only at that point that the biological father filed a petition seeking an order of filiation and visitation. Prior to that, the father had never sought custody or contributed to the child's support on a regular basis. The Court rejected the father's assertion that he should be permitted to veto the adoption by withholding his consent. The Court emphasized that he had "never shouldered any significant responsibility with respect to the daily supervision, education, protection, or care of the child."
[Respondent father] does not complain of his exemption from these responsibilities and, indeed, he does not even now seek custody of his child. In contrast, legal custody of children is, of course, a central aspect of the marital relationship, and even a father whose marriage has broken apart will have borne full responsibility for the rearing of his children during the period of the marriage. Under any standard of review, the State was not foreclosed from recognizing this difference in the extent of commitment to the welfare of the child ( Quilloin, 434 US at 255-256).
Similarly, in Lehr v Robinson ( 463 US 248, supra), the mother had sole custodial responsibility for the parties' two-year-old child since birth, while the father had never established any custodial or financial relationship with the child. Although the father asserted that the mother concealed her whereabouts and frustrated his efforts to maintain a parental relationship, the majority noted that he only filed petitions seeking an order of filiation, visitation and to pay child support after the adoption petition had been filed. The Court distinguished the facts before it from cases involving non-martial fathers who had "developed parent-child relationships:"
The difference between the developed parent-child relationship that was implicated in Stanley and Caban, and the potential relationship involved in Quilloin and this case, is both clear and significant. When an unwed father demonstrates a full commitment to the responsibilities of parenthood by com[ing] forward to participate in the rearing of his child' ( Caban v Mohammed, 441 US 380, 392) his interest in personal contact with his child acquires substantial protection under the due process clause. At that point it may be said that he act[s] as a father toward his children' ( Id. at 389, n. 7). But the mere existence of a biological link does not merit equivalent constitutional protection. The actions of judges neither create nor sever genetic bonds. [T]he importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in promot[ing] a way of life' through the instruction of children as well as from the fact of blood relationship[s]' ( Lehr, 463 US 248, 261, quoting Smith v Organization of Foster Families for Equity, 431 US 816, 844).
The majority in Lehr v Robinson ( 463 US 248, supra), discussing the non-marital father's due process rights, emphasized the need for him to grasp the opportunity to develop a relationship with his child. The Court stated that "parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring" ( Id. at 267). The Court rejected the argument that a non-marital father has an equal protection right on par with the mother to veto an adoption. The Court focused upon the relationship between the father and the child and stated that where "the father had not come forward to participate in the rearing of his child, nothing in the Equal Protection Clause [would] preclud[e] the State from withholding from him the privilege of vetoing the adoption of the child" ( Id.)
In contrast to Stanley and Caban, Quilloin, Lehr, and the instant case, all involve mothers who had always been the children's sole custodian and proposed adoptive resources that were the children's stepfathers. As in Quilloin and Lehr, the instant case is not one "in which the unwed father at any time had, or sought, actual or legal custody of his child." Nor, are these cases where "the proposed adoption would place the child with a new set of parents with whom the child had never before lived." Rather, here, as in Quilloin and Lehr, "the result of the adoption would be to give full recognition to a family unit already in existence, a result desired by all concerned, except [the biological father]." Accordingly, whatever might be required in other situations, here the court is not required "to find anything more than that the adoption [is] in the best interests of the child" ( Quilloin v Walcott, 434 US at 255).
See also Matter of Raquel Marie X. ( 76 NY2d 387 [1990]), where the Court of Appeals set interim standards to guide the courts in determining when non-marital fathers whose children were placed for adoption prior to the age of six months have the right to veto an adoption. The Court recognized that an unmarried father is entitled to the full custodial relationship with his newborn child so long as "he promptly avails himself of all of the possible mechanisms for forming a legal and emotional bond with his child" ( Raquel Marie X.,76 NY2d at 402). The Court, relying on Lehr v Robinson, stated "In order to have the benefit of the maximum protection of the relationship-the right to consent to or veto an adoption-the biological father not only must assert his interest promptly, but also must manifest his ability and willingness to assume custody of the child." ( Raquel Marie X., 76 NY2d at 402). The Court opted for a standard based on the father's manifestation of parental responsibility, meaning "the qualifying interest of an unwed father" which "requires a willingness himself to assume full custody of the child — not merely to block adoption by others" ( Raquel Marie X., at 408).
In the instant case, the subject child and respondent father, like the fathers in Quilloin and Lehr, have only a "potential relationship." The child has always been in the sole custody of the mother and the proposed adoption would give legal recognition to a family unit that has been in existence for six years. Respondent has never had, and does not even now seek, custody of the child. He has not seen his son since he was an infant. His son does not know who he is.
Respondent only filed for visitation after he was notified of the mother's intention to seek a stepparent adoption. He has not contributed to his support for more than six years. Although he visited and paid support for a limited period of time, he never shouldered any significant responsibility for the daily supervision, education, protection or care of the child. To the extent that respondent father's efforts during the first two years of the child's life created a "developed parent-child relationship," as in Stanley and Caban, that relationship did not survive the years that followed when he forfeited whatever rights he may have had by failing to maintain contact or pay support.
2. Current State Statutory Law
Where, as here, a child is placed with an adoptive parent more than six months after birth, the consent of a non-marital father is necessary "only if such father shall have maintained substantial and continuous or repeated contact with the child as manifested by: (i) the payment 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 having lawful custody of the child, or (iii) the father's regular communication with the child or with the person 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 having lawful custody of the child" (DRL § 111[d]).
The subjective intent of the father, whether expressed or otherwise, unsupported by evidence of acts specified in the statute manifesting such intent, shall not preclude a determination that the father failed to maintain substantial and continuous or repeated contact with the child ( see DRL § 111[d]). In determining whether the father has maintained sufficient contact to entitle him to veto the adoption, the court must bear in mind that the mother is under no obligation to show that she made diligent efforts to encourage him to do so (DRL § 111[d]).
In the instant case, respondent father satisfied his statutory obligations during the first two years of the child's life by visiting regularly and contributing to the child's support. During the years that followed he did neither. He has not visited or even seen T.N.B. since March 29, 2002. He has not spoken to him since October 20, 2004. He has not paid or even attempted to pay child support since December 2002.
It is well-settled that a parent does not satisfy the threshold statutory criteria and retain the right to veto the adoption of his child where, as here, he visits and pays support during the child's infancy and then does neither during the years that follow. Under such circumstances, it cannot be said that the parent paid "a fair and reasonable sum, according to his means" and visited "at least monthly" ((DRL § 111[d]; In re Maxamillian , 6 AD3d 349 [1st Dept 2004] [consent of the biological father is not required for an adoption by the child's stepparent who had lived with the child since he was two years old; although the biological father provided support for the first 18 months of the child's life, he neither visited nor paid support during the five and one-half years that followed]; Matter of Jennifer Lauren D ., 110 AD2d 699 [2d Dept 1985] [father's failure to visit, pay support, or attempt to enforce his rights for six years established that he did not retain the right to veto the adoption of his 11-year-old child, although he had been previously married to the mother, resided with her and the child, paid support and attempted to maintain contact through cards, letters and gifts]).
The Court rejects the assertion by respondent father and the Law Guardian that the mother prevented the father from maintaining contact and paying support. As is more fully set forth herein, a parent who asserts that his efforts have been thwarted must introduce objective evidence of the attempts he made to overcome the obstacles that stood in his way ( see infra pp. 17 18). In the instant case, respondent's showing was patently insufficient.
3. Abandonment
Even if respondent father had obtained the right to veto the adoption by having satisfied the requirements of Domestic Relations Law § 111 (1) (d), the court would nevertheless be required to determine whether he forfeited or abandoned that right by evincing "an intent to forego his parental or custodial rights and obligations as manifested by his failure for a period of six months to visit the child and communicate with the child or person having legal custody of the child, although able to do so" (DRL § 111 [a]; In re Taylor R. , 290 AD2d 830 [3d Dept 2002]; In re Shaolin G. , 277 AD2d 312 [2d Dept 2000], lv denied 96 NY2d 710).
While the statute refers to "a period of six months" it fails to specify which six-month period is determinative. Petitioner mother seems to suggest that the critical period is the six-months immediately prior to the date that respondent received actual notice of the proposed adoption ( see e.g., In re Adoption of Kaitlyn D ., 184 Misc 2d 150 [Fam Ct, Suffolk County 2000] [date that the father received actual notice of the stepfather's intent to adopt, rather than the date that the stepfather's petition was filed, is the correct measuring date for determining whether the father's communications or attempts to communicate, were sufficient to defeat a claim of abandonment]).
Prior to 1981, the statutory period of abandonment was the six months immediately prior to the filing of the proceeding. Since proceedings are commenced by service of process, courts were constrained to dismiss abandonment petitions when parental contact was made after the petition was filed but before it was served on the parent. In 1981, the statute was amended to eliminate this possibility (10 New York Family Court Practice §§ 4:34 and 14:18 [2007]).
The courts have uniformly held that a parent's attempts to establish contact by seeking visitation rights after the filing of the adoption petition are of no legal significance and are insufficient to defeat a finding of abandonment ( Matter of Ryan Paul L. , 112 AD2d 47 [4th Dept 1985]; In re Taylor R ., 290 AD2d 830 [3d Dept 2002] [respondent's letter to the child and petition for custody both postdated the adoption petition and represented merely a belated interest in the child which is insufficient to carry his burden of proof that he maintained substantial, continuous and repeated contact with the child]; John E. v Doe , 164 AD2d 375 [2d Dept 1990] [respondent father, who was content to waive his custodial rights and parental responsibilities as long as the child resided with the mother and her husband, did not establish the right to veto the adoption by filing for custody after he learned that the child had been placed for adoption]; Matter of Female Infant F. , 191 AD2d 437 [2d Dept 1993] [adjudicated father who took no legal steps to assert his right to custody until after the child was placed for adoption manifested a less-than-energetic commitment to the child sufficient to establish his right to veto the adoption]; In re Adoption of Hayley , 190 Misc 2d 764 [Fam Ct, Oswego County 2000] [father's attempts to exercise his visitation rights after the filing of the adoption petition were insufficient to defeat finding of abandonment]; Matter of Adoption of Anonymous, 191 Misc 2d 366 [Fam Ct, Onondaga County 2002]).
In the instant case, the evidence establishes that respondent paid no child support, made no contact and made no efforts to establish contact with the mother or the child between April 26, 2005 and October 26, 2005, which is the six-month period prior to the date that he received actual notice of the mother's intent to file a stepparent adoption. Accordingly, the mother asserts that respondent cannot defeat a finding of abandonment.
Respondent father and the Law Guardian disagree, asserting that the relevant period is the six-month period immediately prior to the filing of the adoption petition ( see e.g., Matter of Adoption of Maria S. , 145 Misc 2d 99 [Fam Ct, Queens County 1989]; In re Adoption of Anonymous , 191 Misc 2d 366 [Fam Ct, Onondaga County 2002]). Accordingly, they believe that respondent preserved his right to veto the adoption since he filed a petition for visitation on November 3, 2005, which was within the six-month period immediately prior to February 3, 2006, the date the adoption petition was filed.
The Court rejects the reasoning of the parents and the Law Guardian. During a hearing on the issue of abandonment, the court is not limited to considering either the six-month period immediately prior to the date that actual notice was received or, the six-month period immediately prior to the filing of the adoption petition. "Evidence for a longer period which includes the period immediately preceding the filing of the adoption petition may be considered" ( In re Vanessa Ann G.-L. , 2008 WL 1823046 [2d Dept] [rejecting the parent's assertion that only the six-month period immediately prior to the filing are relevant at a hearing on the issue of abandonment], citing In re Anonymous , 20 AD3d 562 [2d Dept 2005]; In re Taylor O.P ., 303 AD2d 1024 [4th Dept 2003] [rejecting father's assertion that only the six-month period immediately prior to the filing are relevant; a longer period may be considered which includes the period immediately preceding the filing of the adoption petition]; see also Abercrombie v LaBoon , 290 SC 35 [SC 1986] [rejecting parent's assertion that only the six-month period immediately prior to the filing are relevant; the father's filing of a visitation petition during the six-month period prior to the filing of a petition to terminate his parental rights was insufficient to cure his prior three-year history of abandonment where he only filed after learning of the mother's intent to sever all contact]).
In any event, under the unique circumstances presented herein, the Court concludes that whichever six-month period is considered, the actions taken by respondent father were insufficient to preclude a finding of abandonment. Indeed, even if the Court were to accept respondent's assertion that the relevant time is the six-month period immediately prior to the filing of the adoption petition, the result would be the same since here the petition for visitation was merely an insubstantial and belated interest in the child which is insufficient to satisfy respondent's statutory obligations.
In 1975, when the legislature amended Domestic Relations Law § 111 to abolish the "flicker of interest" rule and ease the burden on a party seeking to prove abandonment (Section 3 of Chapter 704 of the Laws of 1975), it explicitly provided that "[e]vidence of insubstantial or infrequent visits or communication by the parent shall not, of itself, be sufficient as a matter of law to preclude a finding that the consent of such parent to the child's adoption shall not be required" (DRL § 111 [b]). In the aftermath of the statutory amendments, the courts have held that a parent's single act of filing a visitation petition, without more, is an inconsequential "flicker of interest" which is insufficient to defeat a claim of abandonment ( Matter of Goldy T ., NYLJ, Nov. 1, 1994, p. 32, col. 5 [Surr Ct, Nassau County] [parent's single act of filing for visitation during relevant six-month period did not preclude a finding of abandonment]; In re Kira OO .,45 AD3d 933 [3d Dept 2007] [parent's filing of a custody petition prior to the filing of a stepparent adoption did not preclude a finding of abandonment where the parent paid no child support during the six-month period, did not call, write or visit the child, and the only direct contact consisted of one unannounced visit to the child's school which was made after counsel declared an intention to file an adoption petition]; see also Matter of Alexander V .,179 AD2d 913 [3d Dept 1992]; In re Adoption of Kaitlyn D ., 184 Misc 2d 150 [Fam Ct, Suffolk County 2000]).
See Corey L. v Martin L ., 45 NY2d 383, 389 (1978), citing Memorandum of Senator Joseph R. Pisani, in support of Senate Bill 1992-A for 1975, NY Legis. Ann., p. 62 (1975). The statute was amended in response to long-standing concern on the part of the Legislature concerning the stringent test for a judicial finding of abandonment. Difficulty was encountered with the established standard which had been expressed: "Even where the flame of parental interest is reduced to a flicker the courts may not properly intervene to dissolve the parentage" ( Corey L. v Martin L ., 45 NY2d at 389). Prior to the statutory amendment, a finding of abandonment required "evidence of a settled purpose to be rid of all parental obligations and to forego all parental rights" ( see e.g., Matter of Susan W. v Talbot G., 34 NY2d 76, 80 [1974]). Requisite was a showing of "acts so equivocal as to bear one interpretation and only one, that the parent manifested an intention to abandon the child forever" ( Matter of Adoption of Goldman , 41 NY2d 894 [1977], Cooke. J., dissenting citing Matter of Brittany, 239 NY 19). For example, in Matter of Susan W. v Talbot G., 34 NY2d 76, the Court of Appeals reversed a finding of abandonment although the father had failed to pay child support, visit regularly or inquire about the children's welfare. In fact, during the two-year period prior to the filing, he had scheduled only one visit. The Court concluded that the father's actions in making telephone calls once or twice a year, sending birthday cards and infrequent gifts were "a sham and contrived to give an appearance of compliance with legal requirements so as to avoid abandonment status and to thwart the adoption." Nevertheless, under then applicable statutory law, the Court was constrained to hold that the father's efforts were sufficient to preclude a finding of abandonment. "Mere inadequacy is not the test." The father's "communications with his children, sporadic and infrequent as they were, evinced that modicum of attention sufficient to defeat petitioners' burden of proving abandonment." The 1975 statutory amendments were intended to avoid the result reached in Matter of Susan W. v Talbot G., since it placed the emphasis upon the parent's intent ("a settled purpose to be rid of all parental rights") rather than upon "the effect of the parent's conduct upon the child with its consequent deprivation of the child's right to concerned, functioning parents" ( see Temporary State Commission on Child Welfare, Chair Senator Joseph R. Pisani, Final Report, Barriers to Freeing Children for Adoption, Report, pp. 15-16 [March 1976]). The result of applying the settled purpose rule was "to enshrine parental rights at the cost of leaving the child forever in limbo wholly at the mercy of the parents' wavering and fluctuating intent. In short, to borrow a phrase from another context, it leave[s] the child twisting slowly in the wind.' This result ought to be avoided at all costs" ( Matter of Com'r of Social Services obo/ Joseph L. , 84 Misc 2d 253, 257-258 [Fam Ct, Ulster County 1975]).
Moreover, in the instant case, respondent father's filing of a visitation petition occurred in the context of an otherwise long and uninterrupted four-year period without any contact whatsoever. Under such circumstances, the courts have held that one such insubstantial effort is insufficient to overcome or cure a prior history of abandonment ( see e.g., Nassau County Dept. of Social Services v C.L. , 13 Misc 3d 1201[A] [Fam Ct, Nassau County 2006] [the father's filing of a visitation petition one month prior to the filing of a petition to terminate his parental rights was insufficient to cure his prior 11-month history of abandonment]; Abercrombie v LaBoon , 290 SC 35 [SC 1986] [the father's filing of a visitation petition during the six-month period prior to the filing of a petition to terminate his parental rights was insufficient to cure his prior three-year history of abandonment where he only filed after learning of the mother's intent to sever all contact]; see also, Matter of James Q ., 240 AD2d 841 [3d Dept 1997]; In re Taylor O.P. , 303 AD2d 1024 [4th Dept 2003] [father abandoned his child where his only contact during the 11 months prior to the filing consisted of sending one letter, one card, a $35 gift, and his belated payment of child support arrears after learning of the pending adoption proceeding]; Matter of Shandra CC. , 249 AD2d 842 [3d Dept 1998] [father abandoned his child where the only contact he initiated consisted of three visits over the course of seven years]; In re Sara HH. , 266 AD2d 779 [3d Dept 1999] [father abandoned his children where he saw them at most five times during the 18 months prior to the filing, all of which occurred when they happened to be visiting the paternal grandmother]; Matter of Amanda , 197 AD2d 923 [4th Dept 1993], lv denied 82 NY2d 662 [father abandoned his child where he did not call the child or the child's custodian during the 18 months prior to the filing of the adoption petition and his only contact was to send Christmas and birthday cards to the child]).
The Court rejects respondent father's claim that the mother thwarted his efforts to maintain contact and pay child support. Where, as here, petitioner establishes that there was an absence of parental contact for more than six months, the burden of proof shifts to the respondent to present evidence that would rebut the inference of abandonment. The hardship asserted as an obstacle to visiting, communicating and paying child support must permeate the parent's life to the extent that contact was not feasible ( see e.g., Matter of Charles R.,127 AD2d 975 [4th Dept 1987] [father's failure to maintain contact was not excused although he was a Canadian citizen, residing in Canada, unable to enter the United States due to his criminal record since he could have applied for entry into this country for purposes of visitation pursuant to applicable federal law]; Matter of Michael Chad M. , 143 AD2d 189 [2d Dept 1988] [father's failure to maintain contact was excused where his efforts were prevented by an order of protection that directed that he refrain from any and all contact with the child]).
At a minimum, a parent who asserts that he has been prevented from satisfying the statutory requirements must introduce objective proof of his attempts to overcome the obstacles that stood in his way ( Matter of James L. , 173 AD2d 941 [3d Dept 1991]; Matter of Devorah Leah B ., 152 AD2d 566 [2d Dept 1989] [although the father claimed to have made numerous telephone calls in an effort to communicate with the child, he offered no objective proof of his attempts and offered no explanation for his lack of effort to insure that the child received the financial support to which she was entitled]; Matter of James Q . 240 AD2d 841 [3d Dept 1997] [respondent maintained that he was prohibited from visiting because of interference by the mother and her family, however, the mother specifically refuted these allegations, and other than general claims of attempted contacts, respondent offered no objective proof to substantiate his assertions]; In re Morgaine JJ. , 31 AD3d 931 [3d Dept 2006] [father failed to offer objective proof of his allegedly thwarted efforts; although the mother suspended visitation without a court order, the father did not file to restore his visitation or attempt to pay his child support arrears until after the adoption was filed]; In re Jason Brian S. , 303 AD2d 759 [2d Dept 2003] [father failed to establish that he was prevented from maintaining contact by an order of protection and the mother concealing the children's whereabouts since he had an obligation to attempt to locate the children, which may have required him to seek the aid of the Family Court]).
In the absence of evidence to the contrary, the ability to visit and communicate is presumed ( see DRL § 111 [a]). The subjective intent of the parent whether expressed or otherwise, unsupported by evidence of acts specified in the statute, is insufficient to defeat a finding of abandonment ( see DRL § 111 [c]).
In the instant case, respondent father failed to establish that the obstacles to his visiting or communicating with the child and paying support permeated his life to such an extent that contact was not feasible. He failed to offer objective proof of his allegedly thwarted efforts to communicate with the mother or the child and the record demonstrates that any subjective intimidation claimed by him did not objectively prevent him from locating the child had he so desired. Indeed, respondent always knew where petitioner worked and how to reach her by telephone. He never went to her place of employment. He never called her at work. He never called her cell phone. He never hired a private investigator. He never contacted the maternal grandfather or the mother's siblings in Guyana. He never contacted her former landlord, the post office, her employer or the Department of Motor Vehicles. He never opened a savings account to put money aside for the child's future. He never sent any cards, gifts, and letters or support payments to the mother's former address or her place of employment or left them with mutual friends or family members with a request that they forward them to the child, choosing instead not to communicate or pay anything at all. He waited until he learned of the proposed adoption to file a petition in Family Court.
Moreover, neither the mother's move to the building down the block, nor the change in her home telephone number is sufficient to excuse respondent father's failure to maintain contact. Even if it were true that respondent had no way of contacting the mother, he would have had an obligation to take basic steps to locate her and the child ( Matter of Baby Girl W.D ., 251 AD2d 501 [2d Dept 1998] [respondent abandoned any right that he may have had to veto the adoption since, even if the mother had kept the child's whereabouts unknown, he failed to take basic steps to find her, such as seeking the aid of the Family Court or contacting the mother through her employer]; In re Joshua FF ., 11 AD3d 738 [3d Dept 2004] [father's consent was not required where he did not send the child any cards or gifts or make any telephone calls and he made no attempt to contact petitioner through family members; while he blamed his lack of contact on petitioner's pattern of blocking his efforts, he knew where petitioner worked and the town where she and the child resided]; In re Annette B. , 2 AD3d 721 [2d Dept 2003] [father failed to establish that his efforts were thwarted by the mother moving from her former address where his efforts were limited to an inquiry of the maternal and the paternal grandmothers as to the mother's current address]; Matter of Erika G., 289 AD2d 803 [3d Dept 2001] [respondent's efforts were insufficient where he sent letters to the maternal grandmother, which were returned to him, and he made no other efforts to contact the children despite access to information concerning their whereabouts]; Matter of Adoption of Emily Ann , 137 Misc 2d 726 [Fam Ct, New York County 1987] [even if the mother kept the child's whereabouts unknown, the father failed to take basic steps to locate her and his financial situation did not prevent him from seeking the aid of the Family Court or prohibit him from contacting the mother through her employer]; Matter of Adoption of Lisa Marie F ., 110 AD2d 993 [3d Dept 1985] [although the acts of the mother to prevent respondent from seeing or communicating with his daughter cannot be condoned, respondent showed little interest in overcoming such obstacles]).
Likewise, respondent father had an obligation to take basic steps to ensure that the child received the support to which he was entitled. This obligation is not excused simply because the custodial parent may have been uncooperative ( Matter of Leah M. , NYLJ, Aug. 18, 1989, p. 18, col. 5 [Surr Ct, Bronx County] [rejecting father's assertion that he should be excused from the obligation to pay support because the mother refused to accept it where he failed to tender reasonable support according to his means and his isolated efforts to do so were insufficient to meet the statutory requirement]; In re Jason Brian S. , 303 AD2d 759 [2d Dept 2003] [father's assertion that he failed to pay support because he was never court-ordered to do so was insufficient to satisfy the statutory requirements where he never sought the aid of the Family Court and instead chose not to pay any amount]).
The Court rejects respondent father's assertions that he satisfied his statutory obligations by attempting to learn the mother's new home address from the maternal grandmother and Mr. and Ms. C. Contrary to respondent's claims, the maternal grandmother testified that he never asked her for assistance. In any event, she correctly noted that respondent did not need her assistance since he could have contacted the mother at any point if he had really wanted to.
In addition, respondent father failed to call Mr. or Ms. C. to testify, although they presumably could have corroborated his assertion that he repeatedly asked them for the mother's new home address. Finally, even if the Court were to accept respondent's assertion that he repeatedly asked the C.s and the maternal grandmother for the mother's new home address, those requests would have been insufficient to satisfy his statutory obligations since there was nothing that objectively prevented him from establishing contact if he so desired.
There is no statutory obligation imposed upon the mother to assist the respondent in either establishing or maintaining contact with his child. He was capable of doing far more than he did.
Respondent's subjective desire to establish a relationship with the child, expressed since the adoption issue has arisen, does not compel a different result ( see DRL § 111 [d]). To the extent that it is necessary to reach the question of whether respondent abandoned the child, the record provides clear and convincing evidence that he has in fact done so ( see DRL § 111[a]; Matter of Adoption of Amy SS. , 64 NY2d 788; Matter of Adoption of Lisa Marie F ., 110 AD2d 993 [3d Dept 1985]). For each of the forgoing reasons, it is
ORDERED, that respondent father's request for visitation is denied and the petition is dismissed; and it is further
ORDERED, that respondent father shall be deemed a "notice father;" and it is further
ORDERED, that the attorneys, the Law Guardian and the parties are directed to appear in Part 17 on July 21, 2008. At that time, the Court shall conduct a hearing to determine whether the proposed adoption is in the best interests of the subject child.