Opinion
March 29, 1971
In an adoption proceeding, the appeal is from an order of the Surrogate's Court, Queens County, dated March 12, 1970, which, after a nonjury trial, dispensed with the requirement of consent by appellant, the natural father. Order reversed, on the law and the facts, with costs and disbursements, and petition to approve adoption denied. New findings of fact are made, as follows: (1) That the papers executed in 1966 to the effect that, in the event of the withdrawal by appellant's wife of demands for support and of her future remarriage, he would consent to the adoption of his son by his wife's new husband did not evidence the present consent required by the governing statute; and (2) that appellant did not abandon his child. Findings of fact inconsistent herewith are reversed. In our opinion, the written documents executed by appellant in 1966, by which he agreed to any future adoption, were not the present consent required by the adoption statute (Domestic Relations Law, § 111). In any event, at the hearing conducted by the Surrogate there was no clear and convincing proof adduced that appellant had unequivocally and with finality abandoned his child, a sine qua non for the dispensation of appellant's consent by the terms and provisions of this statute. In fact, the Surrogate made no finding that appellant had ever abandoned his child, and the Acting Surrogate who made the order under review struck from its contents a proposed decretal paragraph declaring that appellant abandoned his son. Hopkins, Acting P.J., Latham, Christ, Brennan and Benjamin, JJ., concur.