Opinion
Docket No. A-xxxxx-22
07-31-2023
In the Matter an Adoption Proceeding concerning Wyatt JJ., and Serenity JJ. v. Michael UU., Respondent. M.S. and R.S., Petitioners
Joseph R. Williams, Esq., Copps, DiPaola, Silverman, PLLC, Albany, New York with and for Petitioners M. S. and R. S. Glenn B. Liebert, Esq., Warren County Public Defender's Office, Lake George, New York, with and for Respondent Michael UU. Joy M. Smith, Esq., Glens Falls, New York Attorney for the Children
Unpublished Opinion
Joseph R. Williams, Esq., Copps, DiPaola, Silverman, PLLC, Albany, New York with and for Petitioners M. S. and R. S. Glenn B. Liebert, Esq., Warren County Public Defender's Office, Lake George, New York, with and for Respondent Michael UU.
Joy M. Smith, Esq., Glens Falls, New York Attorney for the Children
Michael J. Hartnett, J.
WHEREAS, Petitioners having filed adoption petitions, seeking to adopt the minor children, to wit: Serenity JJ. and Wyatt JJ., the biological minor children of Petitioner Respondent Michael UU.; and
WHEREAS, Respondent Michael UU. having objected to the adoption petitions filed by the Petitioners and asserting that his consent to the adoptions is required pursuant to New York Domestic Relations Law §111 (hereinafter "DRL"); and
WHEREAS, the Court having conducted a Fact-Finding on April 17, 2023 on the issue of whether Respondent Michael UU.'s consent to the adoption is required under DRL §111; and
WHEREAS, the Court having considered the sworn testimony of Petitioner M.S. and Respondent Michael UU. Petitioner R.S. was not called to offer any testimony in this proceeding. The Court further considered the following exhibits: Petitioners Exhibit 2; Respondent's Exhibits E and F; and Attorney for the Child's Exhibit "I".
NOW THEREFORE, after due consideration, the Court finds:
TESTIMONY & FACTUAL FINDINGS:
1. M.S.
M.S. (hereinafter "Petitioner or Mother") testified through direct and cross examination. The mother testified that she is the biological mother of the subject children of this adoption proceeding, Serenity JJ. and Wyatt JJ. (ages 10 and 6 respectively). Petitioner Mother testified that Michael UU. is the biological father of the subject children. Petitioner Mother testified that she and Michael UU. were divorced in 2019 through a Judgment of Divorce. Petitioner Mother subsequently married co-petitioner, R.S., with whom she currently resides along with the subject minor children, Serenity and Wyatt.
Petitioner Mother testified that during the relevant six (6) month period for this proceeding, August 17, 2021 through February 17, 2022, Respondent Michael UU. never saw either child, never requested visitation with the children, never had any phone calls or video calls with the children, never called, texted, or contacted her in any other way regarding the children, and never sent any cards, gifts, or correspondence to the children. Petitioner Mother further testified that she believes Michael UU. knows her address and phone number, and that she never blocked him in any way from communicating with her. Petitioner Mother further testified that there were no Orders of Protection prohibiting Michael UU. from contact with her. Petitioner Mother additionally testified that she never told Michael UU. that he could not email her.
Judicial notice was taken of the custody petition filed by Michael UU. on December 9, 2021 , which only included the child Serenity. Petitioner Mother testified that other than the Custody petition, she "never heard anything else" from Michael UU. Petitioner Mother further testified that Michael UU. was not incarcerated during the six months preceding the adoption petitioners being filed. Additionally, Petitioner Mother testified that she pays for all expenses related to the children, and that Michael UU. has never provided any financial assistance for the minor children since their divorce.
Michael UU. having represented, through counsel, that he continues to assert that he is a "consent" father for both children, despite having filed a Custody Petition only seeking parenting time with Serenity.
On cross examination, judicial notice was taken of the parties Judgment of Divorce. Petitioner Mother testified that the Judgment of Divorce dealt with the issue of child support and her agreement to not receive any child support from Michael UU. Petitioner Mother further testified that she did sell some of Michael UU.'s property to pay for her lawyer's fees in the divorce, but never sold anything during the six (6) months prior to the adoption petitions being filed.
Petitioner Mother also testified that she does not want Michael UU. to have anything to do with either child, but also testified that she did not restrict any contact between Michael UU. and the children.
Petitioner Mother was questioned by Respondent's counsel regarding Amended Adoption Petitions that she and co-respondent, R.S., had filed. The Amended Adoption Petitions were filed with the Warren County Family Court on April 14, 2023, but were withdrawn on the day of the hearing. Petitioner Mother admitted that the Amended petitions removed any reference to criminal history relating to her, as well as criminal history regarding co-petitioner. Petitioner Mother acknowledged that the original petitions did have reference to criminal history, to which they both responded that they had no criminal history. Petitioner Mother testified that she did have a criminal history, and that co-petitioner also has a criminal conviction outside of the State of New York, although Petitioner Mother testified that the questions on paperwork she filled out asked about felony convictions and she did not have a felony conviction.
During examination by the Attorney for the Children, Petitioner Mother testified that during the relevant six (6) month period prior to the filing of the adoption petitions, she would not have encouraged visits between Michael UU. and the children. Petitioner Mother testified that she does not discourage visitation, but with regard to the younger child, Wyatt, he only knows co-petitioner as "Dad". Regarding Serenity, Michael UU. has not seen her in years, and Serenity really only knows R.S. as her father. Petitioner Mother testified that during the relevant six (6) month period, she did not speak about the adoption with Wyatt, but she did speak some with Serenity as she knows Michael UU. and R.S., and she [Serenity] has her own opinions. Petitioner Mother further testified that at the time of the Judgment of Divorce, Michael UU. had no visitation and nothing has changed since that time.
Petitioner Mother was called to testify on rebuttal by her counsel following Michael UU.'s testimony. Petitioner Mother testified that the parties' Separation Agreement that was part of their Judgment of Divorce had Michael UU. paying no child support at that time, which was at Michael UU.'s request. Petitioner Mother further testified that the basis for her agreeing to accept no child support at that time was because Michael UU. was jobless. Petitioner Mother testified that there was nothing in the agreement that stated Michael UU. would never pay child support.
Petitioner Mother testified that during the relevant six (6) months period in this matter, she never blocked Michael UU.'s mail. Petitioner Mother further testified that Michael UU. never had any contact with her or the children through a third-party, (i.e. Michael UU.'s family or friends).
The Court finds that while Petitioner Mother's testimony was somewhat evasive and self-serving, she was a generally credible witness.
2. Michael UU.
Michael UU., the children's biological father, testified at the hearing. Michael UU. testified that during the relevant six (6) month time period he did not have any contact with the subject children or with Petitioner Mother. Michael UU. testified that he was prevented from contacting the children because he was "not allowed" to due to his parole conditions. Michael UU. testified that his parole terminated in January 2023.
Michael UU. testified that he was released from incarceration in August of 2020. Michael UU. testified that he was barred from contact with the subject children by his parole officer and the terms of his parole (parole conditions). Michael UU. testified that as result of his restrictive parole conditions, that he had to go through his mother to contact Petitioner Mother regarding visitation with Serenity and Wyatt. Michael UU. testified that his mother reported to him that Petitioner Mother said that Michael UU. was in sum and substance 'never going to see' the children.
Michael UU. also testified as to the parties' Judgment of Divorce. Michael UU. testified that the divorce was settled by agreement, with custody being covered by a Family Court Order, that provided Petitioner Mother with sole legal and physical custody of the children, and with Michael UU. having parenting time, weekly letters, and phone calls. Michael UU. testified he was not allowed to exercise his parenting time and visitation during the relevant six (6) month period prior to the adoption petitions being filed.
Michael UU. testified that with regard to child support, that he did not pay any direct child support for Serenity and Wyatt during the six months prior to the adoption petitions being filed. Michael UU. testified that he did not pay any child support for Serenity and Wyatt because of an agreement between himself and Petitioner Mother, through their separation agreement, where Michael UU. would not be required to pay support. Michael UU. testified that the agreement between the parties regarding support was a result of a circumstance where Petitioner Mother had sold numerous cars and property that belonged to Michael UU., and thereafter Michael UU. agreed to not pursue property distribution on these matters in exchange for no child support to be paid by him.
On cross examination, Michael UU. reaffirmed that during the relevant six (6) month period, he did not have any contact with the subject children and that he did not send any gifts or correspondence to the children. Michael UU. testified that as to his belief that his mail was blocked from being delivered to the subject children. Michael UU. testified that while he was incarcerated, he used to send the subject children homemade cards; however, they would come back marked 'return to sender.' Michael UU. further confirmed that during the relevant six (6) month period, he did not send any financial support to Petitioner Mother for the subject children. Michael UU. further testified that he was aware of Petitioner Mother's residence address. Michael UU. testified that Petitioner Mother had changed her telephone number five (5) times before he was released from incarceration.
When asked about contact with Petitioner Mother during the relevant six (6) month period, Michael UU. again testified that his parole conditions prevented him from having any contact with Petitioner Mother. Michael UU. stated that the copy of his parole conditions given to him on release from incarceration stated, "no contact with [Petitioner Mother]" and that this was stated "clearly" and "in big bold sharpie lettering".
Michael UU. confirmed that there were no active Order(s) of Protection against him relating to Petitioner Mother. Michael UU. further testified that he was not aware of any parole condition that prevented him from providing any indirect support for the subject children.
On cross examination from the Attorney for the Children, Michael UU. was questioned about the 2018 Warren County Custody Order, and he testified that he and Petitioner Mother were acting under the terms of that order after their Judgment of Divorce and Agreement was entered. Michael UU. stated that he was led to believe that the prior 2018 custody order controlled as the parties' separation agreement stated that his visitation will be determined by Family Court.
Concerning his parole conditions, Michael UU. testified again that those conditions prevented him from contact with Petitioner Mother, as well as any contact with anyone under the age of eighteen (18), including his own children, without a court order that would approve such contact. Michael UU. stated that these conditions would have included the relevant six (6) month period prior to the adoption petitions being filed.
The Court finds that Michael UU.'s testimony was generally credible. Although Michael UU.'s understanding of certain terms and conditions provided in collateral documents (e.g., the Judgment of Divorce and his Parole Conditions) may have been inaccurate, his testimony was generally responsive to the questions posed and overall Michael UU. presented as a credible witness.
Documentary Evidence
The Court considered the following documentary evidence;
Petitioners' Exhibits
• Exhibit 2 - Judgment of Divorce of Petitioner Mother and Michael UU. entered on xx/xx/xxxx, which incorporated, but did not merge, the parties Separation Agreement dated xx/xx/xxxx (Judicial notice was also taken without objection)
Respondent's Exhibits
• Exhibit E - Amended Adoption Petition for minor child Wyatt filed with the Clerk of the Court on xx/xx/xxxx and withdrawn on xx/xx/xxxx prior to the commencement of any testimony (admitted for the limited purpose of impeachment over the objection of Petitioners);
• Exhibit F - Amended Adoption Petition for minor child Serenity filed with the Clerk of the Court on xx/xx/xxxx and withdrawn on xx/xx/xxxx prior to the commencement of any testimony (admitted for the limited purpose of impeachment over the objection of Petitioners);
Attorney For the Children's Exhibit
• Parole Conditions of Respondent Michael UU. (Attorney For the Children's Exhibit "I".
The Court took judicial notice of the following without objection:
• Adoption Petition filed by the Petitioners for minor child Serenity;
• Adoption Petition filed by the Petitioners for minor child Wyatt;
• Custody modification petition filed by Respondent Michael UU. on December 9, 2021.
Attorney for the Child's Position
The Attorney for the Child took no specific position on this consent proceeding other than the Court must decide the issue of consent to "guide the next steps for all parties in this case."
LAW & ANALYSIS
In this adoption proceeding, whether or not consent is required from a parent (in this case Respondent-Father Michael UU.) is guided by DRL §111. More specifically, because biological mother and the biological father were married at the time of the birth of the subject children to be adopted, DRL § 111(1)(b) requires consent to adoption "[o]f the parents or surviving parent, whether adult or infant, of a child conceived or born in wedlock." However, that consent is also "[s]ubject to the limitations hereinafter set forth" (DRL §111(1)) which limitations, as relevant to these proceedings, are set forth in DRL §111(2)(a) and (6). More specifically, those provisions state as follows:
2. The consent shall not be required of a parent or of any other person having custody of the child:
(a) Who evinces an intent to forego his or her parental or custodial rights and obligations as manifested by his or her 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(2)(a))
and
6. For the purposes of paragraph (a) of subdivision two:
(a) In the absence of evidence to the contrary, the ability to visit and communicate with a child or person having custody of the child shall be presumed.
(b) Evidence of insubstantial or infrequent visits or communication by the parent or other person having custody of the child shall not, of itself, be sufficient as a matter of law to preclude a finding that the consent of such parent or person to the child's adoption shall not be required.
(c) The subject intent of the parent or other person having custody of the child, whether expressed or otherwise, unsupported by evidence of acts specified in paragraph (a) of subdivision two manifesting such intent, shall not preclude a determination that the consent of such parent or other person to the child's adoption shall not be required.
(d) Payment by a parent toward the support of the child of a fair and reasonable sum, according to the parent's means, shall be deemed a substantial communication by such parent with the child or person having legal custody of the child. (DRL §111(6)).
Based upon the testimony of Petitioner Mother and Respondent Michael UU., the Court finds that Petitioner Mother and Michael UU. were married and subsequently divorced in 2019. The Court further finds that the subject children Serenity and Wyatt, are the biological children of Petitioner Mother and Respondent Michael UU. and were born during their marriage to each other. The Court further finds, based upon the testimony of Petitioner Mother and Respondent Michael UU., that there is no dispute that during the relevant six (6) month period from August 17, 2021 through February 17, 2022, Respondent Michael UU. did not have any visitation, contact, or communication with the subject children or Petitioner Mother, nor did Michael UU. provide any financial support in any manner for the subject children during that relevant six (6) month period.
The only attempt by Michael UU. seeking contact or access during the relevant six (6) month period is his petition for modification of custody filed on December 9, 2021. The Court would be remiss to not point out that this one custody petition filed by Michael UU. - filed a year and four months after Michael UU. was released from incarceration - was only for visitation of one of the subject children, Serenity. The custody petition filed by Michael UU., albeit filed during the relevant six (6) month period, based upon the totality of the circumstances in this matter, is insufficient to establish meaningful efforts at visitation or contact with the subject children or their legal custodian, Petitioner Mother, where there was no other proof submitted by Michael UU. showing any other efforts in that regard. See Matter of Kira OO., 45 A.D.3d 933, 936 (3rd Dep't. 2007). See also Kaitlyn D. v. Patricia D., 184 Misc.2d 150 (NY Fam. Ct. 2000) (finding that the father's filing of a visitation petition was not more than an inconsequential "flicker of interest" that would not defeat a claim of abandonment where no other contact had been shown for over two years).
Notwithstanding the above, Michael UU.'s consent to the adoption would still be required if it were shown by Michael UU. that he provided financial support for the subject children, of a fair and reasonable sum, according to his means, as such would be "deemed a substantial communication by such parent with the child or person having legal custody of the child." DRL §111(6)(d). For the reasons set forth hereafter, the Court finds that Michael UU. did not provide for the financial support of the children during the relevant six (6) months immediately preceding the filing of the adoption petitions herein.
The testimony of both Petitioner Mother and Respondent Michael UU. is that Michael UU. has never paid any direct child support to Petitioner Mother for the support of the subject minor children. Both parties testified that their Judgment of Divorce/Separation Agreement contained the terms of child support for the subject children. However, there was conflicting testimony as to what the actual terms of the child support provisions were understood to mean, as well as the basis for the agreement set forth in the Separation Agreement. Petitioner Mother testified that the agreement did state that because Michael UU. was jobless at that time, that he would not pay any child support. Petitioner Mother further testified that the agreement does not state that Michael UU. would never pay child support. Michael UU. testified that he and Petitioner Mother agreed that he would not pay child support in exchange for him agreeing to not seek property distribution, which Michael UU. testified he was seeking because Petitioner Mother sold numerous cars and property of his without his consent.
The Court must be clear that the terms of the parties' child support provisions are set forth in a duly executed and notarized Separation Agreement, a contract. That agreement was thereafter incorporated, but not merged into the parties entered Judgment of Divorce, an enforceable order. As the agreement is a contract, "[t]o interpret a contract, the reviewing court must confine itself to the four corners of the document and only consider extrinsic proof if the contract is ambiguous; if the contract is not ambiguous, it must be enforced according to the plain meaning of its terms." Mid-State Indus. Ltd v. State of New York, 117 A.D.3d 1255, 1256 (3rd Dep't. 2014) citing Brad H. v City of New York, 17 N.Y.3d 180, 185-186 (2011); Matter of Warner v Board of Educ., Cobleskill-Richmondville Cent. Sch. Dist., 108 A.D.3d 835, 836 (3rd Dep't. 2013), lv denied 22 N.Y.3d 859 (2014). The Court finds that the parties' Separation Agreement (contract) is not ambiguous on the issue of child support. The Court further finds that Michael UU.'s assertion that there was a waiver of child support because he agreed to forego property distribution, which he was seeking due to Petitioner Mother's sale of cars and property of Michael UU., is not contained anywhere in the parties' separation agreement and would therefore be extrinsic proof that the Court cannot consider.
The parties' Separation Agreement under the "CHILD SUPPORT" provision sets for the income and child support obligations of Petitioner Mother and Michael UU. The agreement states in bold "Husband's income is below the poverty income guideline. The calculation of the Husband's presumptive obligation is, therefore, provided for in DRL sec. 240(1-b)(d)." It goes on to state "Husband's Child Support for two children under DRL sec. 240 (1-b)(d). $25.00 per month." (See page 3 of Separation Agreement). Paragraph "E" of the child support provision states: [t]he parties agree that given that the Husband is currently jobless no child support will be paid by the Husband." Id. Paragraph "F" then states that while neither party is seeking the services of the child support enforcement unit, either party may seek such services for collection of child support "without first needing permission or consent from the other party and without first seeking any further order of the court." Id. at pp. 3-4.
The distribution of marital property between Petitioner Mother and Michael UU. in their separation agreement is contained on pages 9 and 10 of their Agreement. That provision sets forth the factors considered for equitable distribution, and as to the actual distribution of property, the parties have three sections: "HOUSEHOLD POSSESSIONS", "BANK ACCOUNTS" AND "BUSINESS". Id. at p. 10. As to the latter two sections, Bank Accounts and Business, the parties agreed to retain sole and exclusive ownership of any individual accounts and split evenly any joint accounts; and that they did not jointly own a business together. As to household possessions, the parties stated as follows: "[t]he parties expressly acknowledge and agree that the wife will return any items she has left of the husbands within 45 days of the signed date of this agreement." Id. Notably, the agreement is devoid of any reference to previously sold property that would be used in 'exchange' for a waiver of child support for the subject children. Stated otherwise, the express terms of the agreement at best do not corroborate, and at worst explicitly contradict, the assertions of Michael UU. regarding his stated justification for non-payment of child support.
Additionally, on page 12 of the parties Separation Agreement, under the heading "ENTIRE AGREEMENT" it states the following: "[t]his agreement contains the entire understanding of the parties and there are no promises, terms, conditions, warranties, undertakings, or representations by either party to the other, except as expressly set forth in this agreement." Therefore, given the foregoing, and that there is nothing ambiguous about the terms of the parties Separation Agreement, the Court is confined to the four corners of that contract. As such, the Court cannot, and will not, consider any extrinsic proof as requested and offered by Respondent Michael UU., with respect to the issue of child support. The Court finds that while the parties Separation Agreement states that there will be no child support paid by Michael UU., the Agreement clearly stated that was because Michael UU. was "jobless". Further, the Agreement actually sets forth that pursuant to DRL §240 (1-b)(d) Michael UU. is required to pay $25.00 per month for the support of both children. Additionally, nowhere in the agreement is there any language "opting out" of the application of the Child Support Standards Act, a provision that would be necessary in any agreement to accomplish a permanent waiver of child support as insinuated by Respondent Michael UU.
In light of the above, the Court finds that while there is no dispute that at the time of the execution of the parties Separation Agreement, Michael UU. was not required to pay child support, that was not a permanent waiver of child support. It is clear to the Court from a review of the parties Separation Agreement that the non-payment of child support was due to Michael UU. not having a job at the time the agreement was executed. The Court further finds, as noted above, that it is undisputed that Michael UU. has never provided any child support or financial support to the subject children since the parties Separation Agreement and divorce in 2019, which includes the relevant six (6) month period applicable to this proceeding. It was Michael UU.'s burden to provide proof of financial assistance according to his means, in this case no support, and in that regard, Michael UU. failed to provide any proof at all for the Court to consider. The only proof submitted by Michael UU. was his assertion that he was not required to provide any support or financial assistance for the subject children pursuant to the parties Separation Agreement in 2019. There was no testimony about Michael UU.'s current employment status, or financial circumstances and obligations. As such, the Court's only consideration on the issue of child/financial support for the subject children is the terms of the parties Separation Agreement, which analysis and determination are set forth above.
Based upon the foregoing, the Court finds that Petitioners have shown by clear and convincing evidence that Michael UU. evinced an intent to forego his parental/custodial rights by failing for a period of six (6) month to visit the subject children and communicate with them or their legal custodian, Petitioner Mother, although able to do so. Once that showing was made, the burden then shifted to Michael UU. "to demonstrate sufficient contact or an inability to engage in such contact." Matter of Lori QQ. v. Jason OO., 118 A.D.3d 1084 (3d Dept. 2014); see also Matter of Nathon O., 55 A.D.3d 995, 996 (3d Dept. 2008), lv denied, 11 N.Y.3d 714 (2008). The Court finds for the reasons set forth herein that Michael UU. failed to demonstrate sufficient contact or his inability to engage in such contact.
While Michael UU. testified that he was prevented from having any contact with the subject children or Petitioner Mother because of his parole conditions, the evidence presented in this hearing does not reflect such prohibition. With respect to Michael UU.'s testimony that his parole conditions prevented him from having contact with the subject minor children, the Court's review of the parole conditions would appear to show that testimony as accurate. For instance, on the first page of those parole conditions at lines 10-11, the condition states "I WILL HAVE NO CONTACT WITH ANY PERSON UNDER THE AGE OF EIGHTEEN WITHOUT WRITTEN PERMISSION OF THE P.O." See trial Exhibit "I". The Court did not find any reference in the parole conditions that would exempt the subject children from this condition. The only reference in the parole conditions to any children of Michael UU.'s is found on page three (3) of the parole conditions in the section regarding Michael UU.'s use of the internet in which it states: "I WILL NOT USE THE INTERNET TO COMMUNICATE WITH A PERSON UNDER THE AGE OF EIGTHEEN UNLESS I RECEIVE WRITTEN PERMISSION FROM THE BOARD OF PAROLE TO USE THE INTERNET TO COMMUNICATE WITH A MINOR CHILD UNDER EIGTHEEN YEARS OF AGE WHO I AM THE PARENT OF AND WHO I AM NOT OTHERWISE PROHIBITED FROM COMMUNICATING WITH."
However, of critical importance, a review of Michael UU.'s parole conditions that were admitted into evidence as Exhibit "I" by the Attorney for the Children shows that there was no prohibition stated therein that Michael UU. could not have any contact with Petitioner Mother. Even crediting Michael UU.'s testimony that his parole conditions prevented him from having visitation with and/or communicating with the subject children, there is no proof, other than Michael UU.'s own testimony, that Michael UU. was prevented from communicating with Petitioner Mother, the legal custodian of the subject children. While Michael UU. stated that such a prohibition was clearly indicated in bold sharpie lettering, the certified parole conditions received into evidence contain no such condition. Further, based upon both Petitioner Mother and Michael UU.'s testimony that there were no Orders of Protection against Michael UU. preventing him from having contact with Petitioner Mother, the Court finds that there was nothing preventing Michael UU. from contact with Petitioner Mother regarding the subject children, particularly during the relevant six (6) month period. Other than his own testimony, Michael UU. did not offer any other evidence to support his belief that his parole conditions prevented such contact, i.e. no testimony from his former parole officer(s).
Additionally, no proof was submitted about any attempts by Michael UU. to obtain permission from his parole officer or the Board of Parole to have visitation or communication with the subject children. While Michael UU. testified that his parole officer required a court order to approve him having visitation and/or communication with the subject children, there was no testimony or proof as to when such discussions occurred, nor was the parole officer called as a witness to corroborate Michael UU.'s testimony. Notably, there was no proof submitted to this Court that there was any prohibition on a third party making such contact on behalf of Michael UU. to at least inquire as to how the children are doing and to establish some means of contact with either the subject children and/or Petitioner Mother. In fact, Michael UU. did testify that he had his mother reach out to Petitioner Mother about visitation with the subject children, although there was no direct testimony as to when his mother allegedly reached out to Petitioner Mother. In rebuttal to that testimony, Petitioner Mother's testified that no contact by Michael UU.'s family or friends was had with her or any of her family or friends during the relevant six (6) month period regarding the subject children. Despite that, if this contact by Michael UU.'s mother occurred with Petitioner Mother (which appears to have only been one time), such contact, even at the direction of Michael UU., would not provide Michael UU. the ability to object to the adoption. See Matter of Seasia D., 10 N.Y.3d 879, 890 (2008) (noting that "assuming without deciding that actions taken by a biological father's family may be attributed to him for purposes of establishing his status as a consent father, the family's gestures in this case (an offer to take the birth mother shopping for maternity clothes and certain telephone calls) were insubstantial.")
As noted above, DRL §111(2)(a) states that consent to an adoption is not required of a parent "[w]ho evinces an intent to forego his or her parental or custodial rights and obligations as manifested by his or her 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 ". (emphasis added). Based upon the evidence and corroborated testimony at the hearing of this matter, the Court finds that Michael UU. was able to, at a minimum, maintain contact with the subject children's legal custodian, Petitioner Mother, during the relevant six (6) month period, but did not do so.
Based upon the foregoing, the Court finds that Petitioners have shown by clear and convincing evidence that Michael UU. evinced an intent to forego his parental/custodial rights by failing for a period of six (6) month to visit the subject children and communicate with them or their legal custodian, Petitioner Mother, although able to do so. Once that showing was made, the burden then shifted to Michael UU. "to demonstrate sufficient contact or an inability to engage in such contact." Matter of Lori QQ. v. Jason OO., 118 A.D.3d 1084 (3d Dept. 2014); see also Matter of Nathon O., 55 A.D.3d 995, 996 (3d Dept. 2008), lv denied, 11 N.Y.3d 714 (2008). The Court finds for the reasons set forth herein that Michael UU. failed to demonstrate sufficient contact or his inability to engage in such contact.
Additionally, the Court finds that Respondent Michael UU. failed to demonstrate through competent proof that he should still be considered a consent father because of application of DRL §111(6)(d). This section of the DRL was the only other provision that could have supported a finding of "substantial communication" by Michael UU. thereby requiring his consent to any adoption. Unfortunately, in light of the uncontroverted proof and testimony of the parties in this case regarding no contact or communication or payment of child/financial support with regard to the subject children by Michael UU. during the relevant six (6) month period, the Court has no proof to make such a finding in this case.
ORDER
Based upon the foregoing it is;
ORDERED and ADJUDGED, that pursuant to DRL §111, Respondent Michael UU.'s consent to the adoption of the subject children is not required as Petitioners have satisfied their burden of proof on that issue, and Respondent Michael UU. failed to satisfy his burden of proof to the contrary; and it is further
ORDERED and ADJUDGED, that the Clerk's Office shall schedule a best interest hearing relative to the Adoption Petitions filed by the Petitioners; and it is further
ORDERED and ADJUDGED, that Respondent Michael UU. shall be considered an interested party in the adoption proceeding and shall be permitted to offer testimony and proof at the hearing on the issue of whether the proposed adoption would serve the best interest of the subject children; and it is further
ORDERED and ADJUDGED, that the Custody Modification Petition filed by Respondent UU. on December 9, 2019, shall continue to be held in abeyance until a determination is made by this Court regarding the Adoption Petitions filed by the Petitioners, and if it is determined that the adoption of the subject children by the Petitioners is not in the subject children's best interest, the Court will schedule a further proceeding on that Custody Modification petition at that time; and it is further
Service and Right to Appeal
ORDERED, that the Clerk's Office is directed to serve a copy of this Order upon counsel of record for the parties and the Attorney for the Child by electronic mail, same to be considered good and sufficient service pursuant to FCA §1113; and it is further
ORDERED, all parties shall take notice that: pursuant to section 1113 of the Family Court Act, an appeal must be taken within thirty days of receipt of the order by appellant in court, thirty-five days from the mailing of the order to the appellant by the clerk of the court, or thirty days after service by a party or Attorney for the Child upon the appellant, whichever is earliest.
It is so Ordered.