IN RE: SARA “HH”

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

IN RE: SARA “HH”,1 an Infant. Lana “II”,1 Respondent; Stephen “JJ”,1 Appellant. (And Two Other Related Proceedings.)

Decided: November 24, 1999

Before:  CARDONA, P.J., MIKOLL, MERCURE, YESAWICH JR. and CARPINELLO, JJ. Cassandra Channing (David Seth Michaels, Spencertown, of counsel), Catskill, for appellant. Miner & Miner (Lance Miner of counsel), Hudson, for respondent. Dale Dorner, Law Guardian, Greenville, for Sara“ HH”.

Appeal from an order of the Family Court of Greene County (Lalor, J.), entered November 19, 1998, which (1) granted petitioner's applications, in two proceedings pursuant to Domestic Relations Law article 7, finding that respondent had abandoned his children so that his consent to their adoption was not required, and (2) dismissed respondent's application, in a proceeding pursuant to Family Court Act article 6, for a modification of a previous order of visitation.

Petitioner and respondent were married in 1988 and are the parents of two children, a daughter (born in 1988) and a son (born in 1991).   The parties separated in 1993 and in 1995 entered into a written agreement in Family Court, whereby petitioner received sole custody of the children and respondent was relieved of his obligation to provide child support, child support arrears and medical expenses for the children, and in turn he gave up his visitation rights.   Since that time, respondent has sporadically contacted and visited the children, primarily at his mother's home who has visitation with them one Saturday each month.

In February 1998, petitioner and her current spouse (hereinafter the stepfather) commenced these two proceedings pursuant to Domestic Relations Law article 7 to enable the stepfather to adopt each of the children.   Petitioner contends, inter alia, that respondent's consent was not required because he had abandoned the children (see, Domestic Relations Law § 111[2] [a] ).   After a hearing, Family Court found that abandonment had indeed occurred and entered an order dispensing with respondent's consent.   This appeal followed.

 Although Family Court incorrectly placed the burden on respondent to demonstrate that he had maintained a substantial and continuous relationship with the children, an affirmance is nevertheless dictated for petitioner, whose burden it in fact was, established by clear and convincing evidence that respondent had indeed abandoned the children (see, Domestic Relations Law § 111[2][a] ).   A review of the record convinces us that respondent's conduct evinced a purposeful intent to rid himself of parental obligations and to forego his parental rights (see, Matter of Corey L. v. Martin L., 45 N.Y.2d 383, 391, 408 N.Y.S.2d 439, 380 N.E.2d 266).   From 1995 onward, respondent demonstrated very little interest in the children.   In November of that year, he surrendered his visitation rights in exchange for relief from his child support obligations and, until the adoption petitions were filed, never attempted to contribute to their support or to regain visitation.   Furthermore, from the spring of 1996 through October 1998, respondent saw the children on at most five occasions when they happened to be visiting his mother during her scheduled visitation time.   This “flicker of interest” (Matter of Corey L. v. Martin L., supra, at 389, 408 N.Y.S.2d 439, 380 N.E.2d 266;  see, Matter of Shandra CC. [Constance DD.-Marta CC.], 249 A.D.2d 842, 843, 672 N.Y.S.2d 490;  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) shown by respondent in his children was not enough to preclude a finding of abandonment.

ORDERED that the order is affirmed, without costs.

YESAWICH JR., J.

CARDONA, P.J., MIKOLL, MERCURE and CARPINELLO, JJ., concur.

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