Opinion
X2016-6
02-01-2017
In the MATTER OF ADOPTION OF a Child Identified as J.C.J.
For the Petitioners, A.M. and S.M., Joseph P. Giruzzi, Esq., Utica For the Respondent, R.J., Maryangela Scalzo, Esq. Oneida County Public Defender - Civil
For the Petitioners, A.M. and S.M., Joseph P. Giruzzi, Esq., Utica
For the Respondent, R.J., Maryangela Scalzo, Esq.
Oneida County Public Defender - Civil
Louis P. Gigliotti, S.
Petitioners A.M. (hereinafter "Mother") and S.M. (hereinafter "Stepfather") filed a petition on March 24, 2016 for the private placement adoption of the Mother's biological child, J.C.J. (hereinafter "Child"). Within their petition, the Mother and Stepfather allege the consent of the Child's biological father, R.J. (hereinafter "Father"), who was not married to the Mother at the time of the Child's birth, is not required because he has failed to maintain substantial and continuous or repeated contact with the Child. (See DRL § 111(1)(d) ). This claim is repeated in a separate affidavit sworn to by the Mother.
The Father contests this allegation, claiming his attempts to communicate with the Child during extensive periods of incarceration were frustrated by the Mother. A hearing was held November 4, 2016 to address these contentions. The Father and Mother testified. The Father's responses to interrogatories prepared by counsel for the Mother and Stepfather were received on consent as Exhibit 1. In issuing this Decision, the Court reviewed the totality of the evidence and gave appropriate weight and consideration to the parties' testimony and veracity.
The Father appeared telephonically with the consent of counsel, as he was incarcerated in Florida at the Martin Correctional Facility.
Consent to adoption is required of a father to a child born out-of-wedlock, when that child has been placed with the proposed 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." ( DRL § 111(1)(d) ). The burden of showing "substantial and continuous or repeated contact" rests with the father. (See Matter of Andrew Peter H.T. , 64 NY2d 1090, 1091 [1985] ; see also Matter of Angelina K. (Eliza W. - Michael K.) , 105 AD3d 1310, 1311 [4th Dept 2013] ).
Examining the Father's evidence in this case, the Court first reviews his history of child support payments. The Father testified that he lived with the Mother and the Child in Fort Lauderdale, Florida immediately following the Child's birth in February 2005. At that time, he worked for a builder and provided financially for the Mother and the Child. The Father testified that he stopped living with the Mother and the Child approximately 18 months later, when he was incarcerated. He claimed the Mother stabbed him in the back with a knife after finding him at home having an affair with another woman, but that he took criminal responsibility for this act. The Court questions the Father's veracity on this point, but no documentary proof was submitted at the hearing and online records available through the Florida Department of Corrections (www.dc.state.fl.us) and the Broward County Clerk of the Courts (www.browardclerk.org) contain no information about this incident or any conviction that followed. The Department of Corrections website however, does confirm the Father entered state custody on August 1, 2006. Once incarcerated, the Father remained in state custody until his release on December 1, 2013. The Father lived in the community for less than a month. He was arrested and jailed at the end of December 2013 in connection with a sexual battery offense for which he is currently serving a life sentence following a jury conviction.
Fort Lauderdale is the county seat for Broward County.
The Father stated he has not worked as an inmate since the Child was born. Moreover, the Father explained at the hearing that even if he did work while in prison, the state of Florida does not pay wages to inmates. No evidence to the contrary was presented. Presuming without deciding that the Father has no means by which to make child support payments, his consent can nevertheless be dispensed with because he failed to meet his burden of proof with regard to continuous contact with the Child after he no longer lived with her.
According to the Father, in the first three years following his incarceration in August 2006, he attempted telephone contact approximately 15 times. The Mother acknowledged in her testimony that she received phone calls approximately twice a year, and that she voluntarily gave the Father her cell phone number after receiving a new phone in 2007. While the Mother answered the phone, the Child did not talk to the Father. The Father claimed the Mother denied him the opportunity to speak to the Child. The Mother asserted that the Father did not ask about the Child.
The Mother did bring the Child to prison for a visit with the Father in May 2007. According to the Father, the Mother claimed she would bring the Child again if she could travel a shorter distance. Nearly two years later, the Father obtained a transfer to a prison facility in Palm Beach in March 2009. No visit happened in the six months he was housed there, but the Court was not advised where the Mother lived at that time or whether she knew about the transfer. According to the Mother, she has learned of the Father's whereabouts only after-the-fact from his sister. The Father said he did not have access to a phone at the Palm Beach facility, such that he wrote letters instead. The Father said none of the letters was returned to him on account of an incorrect address, and that the Mother responded in writing to two or three of them. The Mother did not testify about any of these incidents.
Once transferred from Palm Beach to Dade Correctional Facility, where he remained until released on December 1, 2013, the Father said he called the Mother approximately 40 times. The Mother denied that he tried to call this many times, and instead said he continued his pattern of calling approximately twice a year. The Father said the Mother at times answered the phone, but did not allow the Child to speak to him. He testified that he would also send birthday cards and Christmas cards for the Child. As his release date in December 2013 started to approach, he said his efforts to communicate with the Child increased.
By then, the Mother had relocated to Maryland, having moved in November 2011. She obtained an order from Baltimore County Circuit Court in May 2013, which awarded her sole physical and legal custody of the Child. The Father acknowledged he was served with papers for this proceeding. According to the Mother, these papers would have reflected her new address. She said she also maintained the same cell phone number. The Father said that once he was aware of these proceedings, he contacted the court and attempted to file his own petition. He believed however, his paperwork was untimely. He claimed to have filed an appeal, but was unsure of the outcome.
Upon release, the Father estimated that he tried to call the Mother about seven times. By this time, the Mother had moved to New York, having relocated in June 2013. She confirmed the Father telephoned her, although she did not indicate exactly how many calls she received, and said it was the last voice contact she had with him until the hearing before this Court. The Mother indicated that when she did speak to the Father in December 2013, he did not ask any questions about the Child. He instead wanted to know about the Mother's personal life, such as whether they could get back together, whether the Mother had given birth to any other children, and whether the Mother was dating anyone. The Father testified that he told the Mother in his last phone call that he would obtain a lawyer and take her to court. He acknowledged however, that he never followed through with that plan, in part because he was arrested and returned to police custody at the end of December 2013. Nor has he since taken steps to assert his parental rights in court, believing he needed a lawyer to pursue such action after being released from prison.
Following his arrest in late 2013, the Father has been unable to maintain telephone contact. Until his transfer to his current location at Martin Correctional Facility on May 4, 2016, the Father claimed he did not have access to a phone. Even though he now can use a telephone, the father explained that unless he can give the facility a land line for the Mother, her physical address and a billing address for the telephone account, he cannot add her name to what he termed a "PIN list." He has not asked the Mother for this information, presuming she would not give it to him. The Father did however, assert that he continued to send correspondence to the Child at the Mother's address. He said he developed a pattern in 2014 of sending a birthday card in February, a letter in the summer, and a Christmas card in December. He testified that he maintained this pattern in 2015 and 2016. Once served with the adoption petition on May 11, 2016, the Father sent his correspondence via certified mail. The Mother indicated that she did receive a certified letter for the Child at her New York address shortly before the hearing held before this Court, but otherwise, she had not received any correspondence from the Father after December 2013.
"The fact that a parent is incarcerated does not in itself excuse his failure to support, maintain contact with, or plan for the future of his child." ( Matter of Amanda , 197 AD2d 923, 924 [4th Dept 1993] ). In this case, the Father has been imprisoned for almost all of the Child's life after she was 18 months old. Although the uncontroverted testimony is that while in prison, the Father's means of communication were limited to telephone calls and letters, the Court credits the Mother's testimony that the Father communicated only sporadically over the years and showed little interest in the Child when she did speak with him.
While the Father blames the Mother for interfering with his relationship with the Child, the Mother's actions do not support such an inference. Despite her multiple moves and changes in circumstances, the Mother did not try to hide her whereabouts, as evidenced by the Father acknowledging he had her phone number and never had his mail returned to him for an incorrect address. The Mother also engaged in communication with the Father by accepting what calls and mail she said she received. Furthermore, she has enabled a relationship to develop between the Child and the Father's sister. The Mother testified that this aunt calls annually to inquire about the Child, and that her knowledge as to the Father's whereabouts comes not from him but from this sister.
Further undermining the Father's theory is his own inaction. According to a self-prepared document filed with the Court before being assigned counsel, the Father accuses the Mother of trying to take the Child away from him as early as 2011 when she allegedly tried to change the Child's last name through a Florida court proceeding. Yet he submitted no documentary proof as to the letters and cards he wrote in the years since to substantiate his claimed efforts to stay in contact with the Child. He admitted to taking no steps to pursue his appeal of the Maryland custody order. He is not even sure of the status of the papers he filed with the court. Nor has he inquired as to what rights he has as a biological parent to ensure some form of contact with the Child. He has not asked the Mother about adding her name to his "PIN list" at Martin Correctional Facility for the purpose of placing phone calls to her. He has not utilized his own family connections to learn through his sister how the Child is doing. Only after becoming aware of the adoption proceeding in May 2016 did the Father start to use certified mail when sending letters, in a claimed effort to show the Mother would not respond or allow the Child to respond to him.
This paper was self-styled a "Motion to Deny Adoption Petition," but is more accurately described as an Answer, which the Court treated as such since no notice of motion was subsequently filed.
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Caselaw indicates that belated attempts to establish "substantial and continuous or repeated contact" with a child by the natural father, once he has learned of a filed or impending adoption petition, may not be enough to satisfy the requirements of DRL § 111(1)(d). (See, e.g. , Matter of Zachary N. (Paul N.- Hope N.) , 77 AD3d 1116, 1118 [3d Dept 2010] [noting that the timing of the natural mother's modification and violation petitions in Family Court were for the purpose of blocking the adoption and thus carried little weight in the analysis regarding abandonment] ). (See DRL § 111(1)(d) ["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."] ). Even if the Court were to credit the Father's representations that he wrote the Child three times each year from 2014 to the present, such actions would fall short of the standard of maintaining continuous contact. (See, e.g. , Matter of Keyanna AA. , 35 AD3d 1079, 1080 [3d Dept 2006] [finding consent of father not required where he sent letters or cards approximately twice a year and five times in the year in which the adoption petition was filed]; see also Matter of Amanda , 197 AD2d at 924 [finding a father had abandoned his child when his only contact was to send birthday and Christmas cards] ).
After careful consideration of all of the evidence, the Court finds the Father has failed to establish his right to consent to the adoption petition filed by the Mother and the Stepfather. As such, it is hereby
ORDERED that the consent of the Father is not necessary and the adoption may proceed to finalization in the normal course.