Anthony R., Sr., Respondent-Appellant. v. <<

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of DORAL B., Donald J., and Antonio R. Erie County Department of Social Services, Petitioner-Respondent; Anthony R., Sr., Respondent-Appellant.

Decided: December 31, 2003

PRESENT:  GREEN, J.P., SCUDDER, GORSKI, LAWTON, AND HAYES, JJ. Gwennor Lloyd Jones, Buffalo, for Respondent-Appellant. David C. Schopp, Law Guardian, the Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel), for Antonio R.

Petitioner, Erie County Department of Social Services (DSS), commenced this proceeding seeking to terminate the parental rights of the mother of the three children named in the petition.   The mother voluntarily surrendered her parental rights to DSS, and DSS alleged that the consent of respondent, who is the father of one of the children and who at the time was incarcerated in a state correctional facility, was not required because respondent had not maintained sufficient contact with the child (see Domestic Relations Law § 111[1][d] ).  Upon his release from prison, respondent petitioned for custody of the child.   After a hearing, Family Court determined that respondent's consent to the adoption was not necessary, and, after a further hearing on the best interests of the child, the court committed the custody of the child to DSS and dismissed respondent's petition for custody, thereby freeing the child for adoption by his foster parent.

We reject the contention of respondent that his consent to the adoption of his child is required.   Respondent failed to establish that he maintained “substantial and continuous or repeated contact” with the child within the meaning of Domestic Relations Law § 111(1)(d) (see Matter of Jason Brian S., 303 A.D.2d 759, 760, 758 N.Y.S.2d 96).   Respondent paid no child support (see § 111[1][d][i] ), and he failed to establish that he had “regular communication with the child or with the person or agency having the care or custody of the child” (§ 111[1][d][iii] ).   His incarceration for two years prior to the hearing does not excuse his failure to communicate with the child or his caregivers (see Matter of Damien, 281 A.D.2d 896, 722 N.Y.S.2d 440;  Matter of Alexander B., 277 A.D.2d 937, 716 N.Y.S.2d 253;  Matter of Amanda, 197 A.D.2d 923, 924, 602 N.Y.S.2d 461, lv. denied 82 N.Y.2d 662, 610 N.Y.S.2d 150, 632 N.E.2d 460).   The record also supports the court's finding that it is in the best interests of the child to be committed to the guardianship and custody of DSS and to be adopted by his foster parent (see Matter of Kasiem H., 230 A.D.2d 796, 797, 646 N.Y.S.2d 541).

We agree with respondent that the court erred insofar as it terminated his parental rights on the ground of permanent neglect.   The petition filed by DSS sought to terminate the parental rights of only the mother.   While the order states both that respondent's consent was not necessary for the adoption of the child and also that respondent's parental rights were terminated on the ground of permanent neglect, the decision states only that respondent's consent was not required for the adoption of the child.   We conclude that the order conflicts with the decision, and the decision, which determined only that respondent's consent was not required pursuant to Domestic Relations Law § 111(1)(d), controls (see Matter of Edward V., 204 A.D.2d 1060, 1061, 614 N.Y.S.2d 348).   We therefore modify the order by deleting those provisions terminating respondent's parental rights on the ground of permanent neglect.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by deleting those provisions terminating respondent's parental rights on the ground of permanent neglect and as modified the order is affirmed without costs.

MEMORANDUM: