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IN RE: the ADOPTION OF CHILDREN WHOSE FIRST NAMES ARE E.S.T.M. C.A.M.
This matter has been brought before the Court by the filing of two petitions by J. K. M. (the adoptive mother) and R. M. (the adoptive father) (collectively the petitioners) on October 31, 2017, seeking to adopt two children: E. S. T. M. (d.o.b. xx/xx/2010) and C. A. M. (d.o.b. xx/xx/2013).
An amended Notice of Proposed Adoption for each child was personally served on E. S. M. (father) on May 3, 2018, and on the return date of June 8, 2018, he appeared and requested counsel. The matter was adjourned to August 24, 2018, when he appeared with counsel and stated that he would not consent to the adoptions. The petitioners alleged that the father had abandoned both children and therefore, in accordance with Domestic Relation Law (DRL) 111(2)(a), his consent was not required.
The Court held a hearing on the issue of abandonment on November 8, 2018. The Court received testimony from the adoptive mother, E. S. M. and his sister, H. M., and all were subject to cross examination by opposing counsel as well as by the Attorney for the Child (AFC). Much of the testimony was undisputed. D. M. (mother), voluntarily placed E. S. T. M., who was then approximately 18 months old, with the petitioners in mid-2012. The Court took judicial notice of a Monroe County Family Court order, dated January 11, 2013, that “upon agreement of the parties” granted the petitioners and D. M. and E. S. M. joint custody of E. S. T. M. and ordered “primary physical residence of the child” to be with the petitioners. That order included a specific and detailed visitation schedule for the father.
The Court also took Judicial Notice of a Steuben County Family Court dated December 18, 2013, entered “upon stipulation and consent” which continued the “primary physical placement/custody” of the child with the petitioners and included a revised specific and detailed visitation schedule for the father.
D. M. voluntarily placed the child, C. A. M., who was then approximately 1 month old, with the petitioners in March, 2013. The Court took judicial notice of a Steuben County Family Court order entered June 25, 2013, which granted custody of C. A. M. to the petitioners and visitation to E. S. M. “as the parties agree.” It was undisputed that E. S. M. has had no contact with E. S. T. M., C. A. M. or the petitioners since early 2013, despite the above referenced court orders of visitation.
E. S. M. testified that the petitioners moved and that he did not know the location of their new residence or phone number and, therefore, he was unable to contact the petitioners to request visitation with his children. The adoptive mother testified that the petitioners did move from Savona to East Campbell in January, 2013, but that she called E. S. M. and provided him with the petitioners' new address. She also testified that petitioners had the same phone number at both the Savona and East Campbell properties, a number E. S. M. had used to contact the petitioners. The Court notes that E. S. M. appeared in Family Court with the petitioners on at least two occasions after the petitioners moved, but nevertheless claimed he had no knowledge of the petitioners' address or phone number and was unable to obtain the same.
In June, 2017, E. S. M. contacted the petitioners using a number he found “on a website” and requested visitation with the children. The petitioners refused this request. E. S. M. thereafter visited the children's school.
On June 15, 2017, the petitioners filed a custody petition requesting that the provisions of the prior Family Court order regarding visitation with the children be vacated. By Order To Show Cause dated June 16, 2017, the petitioners were granted custody and E. S. M. was granted visitation “as all parties can agree.” Since that order was issued, he has had no contact with the children.
E. S. M. filed Family Court petitions on June 26th and July 10th, 2017, seeking modification of the custody orders regarding E. S. T. M. and C. A. M. respectively. He also filed violation petitions on August 9, 2017.
Generally, the consent of the natural father is required in an adoption proceeding (DRL 111(1). However, “[t]he consent shall not be required of a parent 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)). The burden of proof is on the party opposing the adoption to prove, by clear and convincing evidence, that his consent to the adoption is required (Matter of D., 164 AD3d 1237 [2nd Dept. 2018]). To meet this burden, he must “not only assert his interest promptly (bearing in mind the (children's) need for early permanence and stability) but also must manifest his ability and willingness to assume custody’ during the six months prior to the (children's) placement” (Matter of Seasia D., 10 NY3d 879 ). Factors for the Court to consider include public acknowledgement of paternity, payment of pregnancy and birth expenses, steps taken to establish legal responsibility for the children and “other factors evincing a commitment to the (children)” (Matter of Seasia D., Id.).
In this case, there is no question that E. S. M. failed to visit with the children or communicate with the children or the petitioners in any manner for significantly longer than six months prior to the date the petition for adoption was filed.
However, the Court must also consider the question of whether E. S. M. was “able to” visit or communicate with the children or the petitioners. “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” (DRL 111(6)(a)). In his petition, E. S. M. alleged that the petitioners failed to inform him of important or special events involving the children (i.e., first day of school, school field trips and events, or school picture day). He also claims that the petitioners moved and that he did not have the petitioners contact information and therefore was unable to arrange visitation with his children between 2014 and 2017. E. S. M. testified that he began searching for the petitioners and the children in June, 2017 and that he was easily able to find the petitioners' phone number, and locate the children's school, through a website. However, glaringly absent from E. S. M.'s testimony was any effort he made to locate the petitioners between January, 2013 and June, 2017. Although E. S. M. claimed that he was unable to locate or contact the petitioners during this four-year period, the Court finds his claims lack credibility given that the petitioners retained the same phone number (which E. S. M. had) even though they changed residences, coupled with proof of how easily E. S. M. found the petitioners when he chose to do so.
E. S. M.'s testimony that he never intended to give up his parental rights is neither persuasive nor prevailing. “The subjective intent of the parent shall not preclude a determination that the consent of such parent to the child's adoption shall not be required (DRL 111(6)(c)).
This Court, having made examination and inquiry into the facts and circumstances of the case and into the surroundings, conditions and capacities of the people involved in this proceeding, the Court finds and determines that, by clear and convincing evidence, that the father, due to his lack of contact or communication with the children or the petitioners, demonstrated his intent to forego his parental rights.
NOW, therefore, it is
ORDERED AND ADJUDGED that the father, E. S. M., has abandoned the children, E. S. T. M. and C. A. M., in accordance with DRL 111; and it is further
ORDERED AND ADJUDGED that the consent of the father, E. S. M., to the adoption of these children is not required and this adoption may proceed; and it is further
ORDERED AND ADJUDGED that further notice to the father, E. S. M., is not required for this adoption.
This constitutes the Decision and Order of this Court.
Philip J. Roche, J.
Response sent, thank you
Docket No: A-1981-17
Decided: November 14, 2018
Court: Family Court, New York,
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