S., ETHAN, MTR. OF ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
710
CAF 10-00666
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND GREEN, JJ.
IN THE MATTER OF THE ADOPTION OF ETHAN S.
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TARRA C. AND TROY C., PETITIONERS-RESPONDENTS; MEMORANDUM AND ORDER
JASON S., RESPONDENT-APPELLANT.
(APPEAL NO. 1.)
EFTIHIA BOURTIS, ROCHESTER, FOR RESPONDENT-APPELLANT.
JAMES S. HINMAN, P.C., ROCHESTER (JAMES S. HINMAN OF COUNSEL), FOR
PETITIONERS-RESPONDENTS.
TANYA J. CONLEY, ATTORNEY FOR THE CHILD, ROCHESTER, FOR ETHAN S.
Appeal from an order of the Family Court, Monroe County (Joseph
G. Nesser, J.), entered July 24, 2009 in an adoption proceeding. The
order, among other things, permitted the adoption of the subject child
to proceed without respondent’s consent.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: In appeal No. 1, respondent, the biological father
of the child in question, appeals from an order determining, following
an evidentiary hearing, that he forfeited his right to consent to the
adoption of the child. In appeal No. 2, the biological father appeals
from an order dismissing his petition for modification of a prior
order of custody and visitation based on Family Court’s determination
in appeal No. 1 that the adoption proceeding was to proceed without
the biological father’s consent. Contrary to the biological father’s
contention in appeal No. 1, the court properly determined that the
adoption could proceed without his consent. Although not addressed by
the court, the threshold issue in such an adoption proceeding is
“whether the consent of the biological father is required, i.e.,
whether he ‘maintained substantial and continuous or repeated contact
with the child as manifested by’ paying support for the child and
either visiting the child at least monthly or regularly communicating
with the child” or with the person having custody of the child (Matter
of Adreona C., 79 AD3d 1768, 1769, quoting Domestic Relations Law §
111 [1] [d]; see Matter of Andrew Peter H. T., 64 NY2d 1090, 1091).
We note, however, that “ ‘a biological [father]’s failure to visit and
pay support, although significant, are not determinative factors where
they are properly explained’ ” (Matter of Jonna H., 252 AD2d 839, 839;
see Matter of Corey L. v Martin L., 45 NY2d 383, 390).
-2- 710
CAF 10-00666
Here, the biological father failed to meet his burden of
establishing his right to consent to the adoption (see Domestic
Relations Law § 111 [1] [d]). The biological father did not provide
any financial support to petitioner mother during the three years
preceding the filing of the adoption petition in February 2009, had
not seen the child since September 2006, and failed to communicate
with the child or the mother from September 2006 to May 2008.
Although the biological father sent two letters to the mother, one in
May 2008 and another in June 2008, and the biological father’s
counselor called the mother once in May 2008, such insubstantial and
infrequent attempts to contact the mother and the child do not
constitute “substantial and continuous or repeated contact” necessary
to require the biological father’s consent for the adoption (id.; see
Matter of Jaleel E.F., 81 AD3d 1302, 1303). Contrary to the
biological father’s further contention, his substance abuse treatment
did not provide an adequate explanation for his failure to maintain
substantial contact with the child (cf. Jonna H., 252 AD2d at 840).
The biological father entered substance abuse treatment in October
2007 and chose not to contact the mother or the child, despite the
fact that he had a cell phone, as well as access to the mail service
and the Internet.
In view of our determination in appeal No. 1, we conclude that
the court properly dismissed the biological father’s petition in
appeal No. 2.
Entered: June 10, 2011 Patricia L. Morgan
Clerk of the Court