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IN RE: the ADOPTION OF DEVIN F. Jane M.M., Petitioner-Appellant; v. Meredith A., Respondent-Respondent.
Petitioner commenced this proceeding seeking to adopt her husband's child. According to petitioner, respondent mother had abandoned the child, and thus her consent to the adoption was not required. We conclude that Family Court properly dismissed the petition on the ground that respondent's consent to the adoption was required and was not given (see Domestic Relations Law § 111[1][c] ). The evidence presented at trial established that respondent timely and consistently paid child support pursuant to an order entered upon her agreement with the child's father in conformity with the requirements of the Child Support Standards Act (see Family Ct. Act § 413[1] ). Such payment of child support is “deemed a substantial communication by [respondent] with the child or person having legal custody of the child” and precludes dispensing with respondent's consent to the adoption on the ground of abandonment pursuant to Domestic Relations Law § 111(2)(a) (§ 111[6][d]; cf. Matter of Taylor O.P., 303 A.D.2d 1024, 757 N.Y.S.2d 194). The court properly rejected petitioner's contentions that the amount of child support was not “fair and reasonable ․, according to [respondent's] means” (§ 111[6][d] ), and that respondent's payments were not made voluntarily because they were made through a wage deduction order (see Matter of Hayley, 190 Misc.2d 764, 772, 740 N.Y.S.2d 557). Finally, petitioner failed to preserve for our review her constitutional challenge to Domestic Relations Law § 111 (see generally Matter of Lydia K., 112 A.D.2d 306, 307, 491 N.Y.S.2d 752, affd. 67 N.Y.2d 681, 499 N.Y.S.2d 684, 490 N.E.2d 551; Matter of Latrice R., 93 A.D.2d 838, 461 N.Y.S.2d 61, lv. denied 59 N.Y.2d 604, 464 N.Y.S.2d 1025, 451 N.E.2d 504).
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
MEMORANDUM:
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Decided: June 08, 2007
Court: Supreme Court, Appellate Division, Fourth Department, New York.
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