Elvis M. v. Ysdirabellinna L.

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 31, 2016 520243
________________________________
In the Matter of YSABEL M., an
Infant.
YSDIRABELLINNA L. et al.,
Respondents;
ELVIS M.,
Appellant,
et al.,
Respondent.
(Proceeding No. 1.) MEMORANDUM AND ORDER
_______________________________
In the Matter of ELVIS M.,
Appellant,
v
YSDIRABELLINNA L. et al.,
Respondents.
(Proceeding No. 2.)
________________________________
Calendar Date: February 9, 2016
Before: Peters, P.J., McCarthy, Egan Jr. and Lynch, JJ.
__________
Jane M. Bloom, Monticello, for appellant.
Ricciani & Jose, LLP, Monticello (E. Danielle Jose-Decker
of counsel), for respondents.
Isabelle Rawich, South Fallsburg, attorney for the child.
__________
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Egan Jr., J.
Appeal from an order of the Family Court of Sullivan County
(Meddaugh, J.), entered November 21, 2014, which, among other
things, granted petitioners' application, in proceeding No. 1
pursuant to Domestic Relations Law article 7, to determine that
the consent of respondent Elvis M. was not required for the
adoption of the child.
At all times relevant, Elvis M. (hereinafter the father)
and the child's mother were the unmarried parents of a daughter
(born in 2002). Ysdirabellinna L. (hereinafter the aunt) and
Richard L. (hereinafter the uncle) are the child's maternal aunt
and uncle. In April 2014, the aunt and uncle, who apparently
obtained custody of the child upon default in March 2005,
commenced proceeding No. 1 seeking to adopt the child and, in the
context thereof, alleged that the father's consent was not
required. The father, who has been incarcerated in state prison
since 2008, opposed the proposed adoption and thereafter
commenced proceeding No. 2 seeking visitation. Following a fact-
finding hearing and a Lincoln hearing, Family Court granted the
adoption petition finding, among other things, that the father's
consent was not required and that it was in the child's best
interests for the adoption to proceed. Family Court also
dismissed the father's petition seeking visitation. This appeal
by the father ensued.1
We affirm. As this Court recently summarized, "[a]
biological father's consent to adopt a child over six months old
who was born out of wedlock is required only if the father
maintained substantial and continuous contact with the child as
manifested by payment of reasonable child support and either
monthly visitation or regular communication with the child or
custodian. As the statute makes clear, Domestic Relations Law
§ 111 (1) (d) imposes a dual requirement upon the biological
1
The father has not briefed the denial of his request for
visitation and, as such, we deem any argument in this regard to
be abandoned (see Matter of Owens v Chamorro, 114 AD3d 1037, 1038
n 1 [2014]).
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father – satisfaction of both the support and
contact/communication provisions – and the father's unexcused
failure to satisfy either of these requirements is sufficient to
warrant a finding that his consent to the proposed adoption is
not required" (Matter of Bella FF. [Margaret GG.–James HH.], 130
AD3d 1187, 1187-1188 [2015] [internal quotation marks, footnote
and citations omitted]).
As to the support element, we note at the outset that,
"absent a showing of insufficient income or resources, the fact
that [the father] was in prison does not relieve him from his
responsibility to provide some financial support to the extent of
his ability" (Matter of Dakiem M. [Demetrius O.–Dakiem N.], 94
AD3d 1362, 1363 [2012], lv denied 19 NY3d 807 [2012]; see Matter
of Hayden II. [Renee II.–Devan JJ.], 135 AD3d 997, 998-999
[2016]; Matter of Maurice N. [Carlos O.], 128 AD3d 1117, 1118
[2015]). In this regard, the father testified that he sent money
to the child for her birthday and "at various times" over the
years, including an occasion in 2014 when he sent the child –
through her mother – approximately $100. When questioned as to
the manner in which (given his incarceration) he transmitted such
funds, the father clarified that he "had [his] family send money
to [the child]." The father's vague and otherwise
unsubstantiated testimony on this point was flatly contradicted
by the aunt, who testified that she did not receive any financial
support from the father after the child came to live with her in
March 2005. Under these circumstances, Family Court properly
found that the father failed to satisfy the support element of
Domestic Relations Law § 111 (1) (d) (see Matter of Bella FF.
[Margaret GG.–James HH.], 130 AD3d at 1188; Matter of Dakiem M.
[Demetrius O.–Dakiem N.], 94 AD3d at 1363).
We reach a similar conclusion with regard to the contact
element of the statute. The father, by his own admission, had
not seen the child since 2007 (at which time the child was five
years old) and, even crediting his testimony on this point, had
only spoken with the child on the telephone once in or about July
2013. Although the father insisted that he periodically sent
cards and letters to the child's mother to, in turn, give to the
child, as well as gifts for the child's birthday and Christmas
each year, the aunt testified that she never received any cards,
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letters, emails, social network requests, packages or gifts for
the child from the father.2 The aunt similarly stated that the
father never contacted her requesting any information regarding
the child. While the father testified that he did not have an
address for the aunt and the uncle, the father admitted that he
had been to their residence in 2004, and the aunt testified that
she and her husband had lived at the same address for more than
20 years, that both her address and phone number were listed in
the local phone book and that she had made no attempt to keep
such information confidential. Although the father insisted that
he could not use the Internet – while incarcerated – to locate
the aunt and the uncle, he acknowledged that he had access to
phone books in prison and offered no persuasive explanation as to
why he did not ask a friend or family member to assist him in
obtaining the aunt and uncle's address (see Matter of Bella FF.
[Margaret GG.–James HH.], 130 AD3d at 1188-1189). More to the
point, the father acknowledged that the child's mother
"[i]nadvertently" provided him with the aunt and uncle's address
in November 2013 (when she shared a copy of the child's school
report card); still, the father made no effort to contact the
aunt, the uncle or the child until after the adoption petition
was filed.3
The case law makes clear that the father's "incarceration
[does] not excuse his failure to maintain substantial and
continuous or repeated contact with his child" (id. at 1189
[internal quotation marks, brackets and citations omitted]; see
Matter of Maurice N. [Carlos O.], 128 AD3d at 1118), and the
record reflects that the father's efforts in this regard were –
2
The father testified that he received correspondence from
the child – through the mother – on "[a] good five or six
occasions" over the years.
3
According to the father, he was concerned that there
might be an order of protection prohibiting him from such contact
(although he admittedly had no notice to that effect) and, in any
event, he apparently elected not to reach out to the aunt and the
uncle "[o]ut of respect for them."
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at best – insubstantial and sporadic. Accordingly, inasmuch as
the father failed to satisfy the criteria set forth in Domestic
Relations Law § 111 (1) (d), Family Court correctly concluded
that his consent to the proposed adoption was not required.
Further, in light of our conclusion in this regard, we need not
consider the aunt and uncle's alternative ground for affirming
Family Court's order – namely, that the father abandoned his
child.
The father's ineffective assistance of counsel claim does
not warrant extended discussion. To the extent that the father
faults counsel for failing to tender sufficient proof of his
financial resources (or lack thereof), counsel "may well have
made a tactical decision not to dwell upon [the father's]
finances – particularly if [the father] had no viable explanation
for his failure to provide" support beyond the intermittent and
unspecified sums of money purportedly sent to the child by
members of his family (Matter of Bella FF. [Margaret GG.–James
HH.], 130 AD3d at 1189-1190). As for counsel's failure to call
the mother as a witness, it is well settled that "the failure to
call particular witnesses . . . does not necessarily constitute
ineffective assistance of counsel" (Matter of Julian P. [Colleen
Q.], 129 AD3d 1222, 1224 [2015] [internal quotation marks,
brackets and citation omitted]) – particularly where the record
fails to reflect that the desired testimony would have been
favorable (see Matter of James P., 17 AD3d 733, 735 [2005]). In
short, as our review of the record reveals that the father was
afforded meaningful representation, we are satisfied that he
received the effective assistance of counsel.
Peters, P.J., McCarthy and Lynch, JJ., concur.
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ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court