| Matter of Mia II. (Theresa JJ.\MMichael II.) |
| 2010 NY Slip Op 05846 [75 AD3d 722] |
| July 1, 2010 |
| Appellate Division, Third Department |
| In the Matter of Mia II., an Infant. Theresa JJ. et al., Respondents;Michael II., Appellant. |
—[*1] Kara Mackey Dopman, Glens Falls, for respondents.
Garry, J. Appeal from an order of the Family Court of Washington County (Pritzker, J.),entered December 14, 2009, which granted petitioners' application, in a proceeding pursuant toDomestic Relations Law article 7, to determine that the consent of respondent was not requiredfor the adoption of his child.
Respondent and petitioner Theresa JJ. are the unmarried biological parents of one child(born in 2002). They lived together for approximately five months following the child's birth.Theresa JJ. and the child thereafter began living with petitioner Robert JJ. Petitioners weremarried in July 2003 and now reside in the Village of Hudson Falls, Washington County.
In May 2009, petitioners commenced this proceeding for adoption, seeking a determinationthat respondent's consent is not required pursuant to Domestic Relations Law § 111. Aftera hearing at which petitioners and respondent testified, Family Court issued a decision on therecord, followed by a written decision, concluding that, among other things, respondent's consentwas not required due to his [*2]failure to have significant contactwith the child. Respondent appeals.[FN1]
"Consent to adoption is not required of a parent who 'evinces an intent to forego his or herparental or custodial rights and obligations as manifested by his or her failure for a period of sixmonths to visit the child and communicate with the child or person having legal custody of thechild, although able to do so' " (Matter of Shauna B., 305 AD2d 737, 737 [2003],quoting Domestic Relations Law § 111 [2] [a]). A parent is presumed to have the ability tovisit and communicate with the child (see Domestic Relations Law § 111 [6] [a];Matter of Kira OO., 45 AD3d933, 935 [2007]). Upon this application, petitioners bore the burden of proving by clear andconvincing evidence that respondent intended to forgo his parental rights and obligations (see Matter of Nathon O., 55 AD3d995, 996 [2008], lv denied 11 NY3d 714 [2008]; Matter of Shauna B., 305AD2d at 737-738).
Theresa JJ. testified that respondent's last visit with the child took place in 2002 and that hehad never had telephone contact with the child, sent a written request to see her, paid childsupport in any form, or sent gifts for the child.[FN2]Petitioners both testified about an occasion in 2006 when respondent telephoned late at night,asking to see the child, and another occasion in 2008 when he appeared at petitioners' home earlyin the morning making the same request. Respondent was allegedly intoxicated on both of theseoccasions. Robert JJ. testified that he suggested that respondent should return when he was soberto discuss visitation, but respondent did not do so. Robert JJ. further confirmed that respondenthad never provided any form of support for the child. This testimony was sufficient to meetpetitioners' initial burden and to shift the burden to respondent to demonstrate that he madesufficient contact with the child or was unable to do so (see Matter of Nathon O., 55AD3d at 996; Matter of Kira OO., 45 AD3d at 935).
Respondent testified that he sent numerous e-mails to Theresa JJ. asking to see the child andthat he sent gifts for the child to his mother. He alleged that he saw the child five or six times in2007, that Theresa JJ. wished to keep these alleged visits secret, that she and her mother hadthwarted him from developing a relationship with the child, and that an order of protectionprevented him from visiting or contacting the child. He further testified that he had commencedvisitation proceedings several times, but had discontinued them each time, either becauseTheresa JJ. agreed to allow him to see the child or because she threatened to prosecute him forviolating the order of protection if he did not do so.
In assessing these competing claims, Family Court found petitioners' testimony credible. Thecourt further found that while respondent's feelings for his child were sincere, he was "all toowilling to make excuses for failing to raise his daughter." According the appropriate deference tothese determinations (see Matter of Kira OO., 45 AD3d at 935; Matter of Morgaine JJ., 31 AD3d931, 933 [2006]), we find that the court properly determined that respondent's consent to theadoption was not [*3]required. The apparent sincerity ofrespondent's feelings for the child does not prevent this determination. Subjective intent,"unsupported by acts, is insufficient to avoid a finding of abandonment" (Matter of ShaunaB., 305 AD2d at 738; see Domestic Relations Law § 111 [6] [c]). Respondentfailed to take action to develop a relationship with his child, and focused his testimony onblaming Theresa JJ. and others for allegedly thwarting his efforts (see Matter of Joshua FF., 11 AD3d738, 739 [2004], lv denied 4 NY3d 703 [2005]; Matter of Randi Q., 214AD2d 784, 786 [1995]). Family Court found these claims unpersuasive, and we agree.
As to respondent's claim that the order of protection prevented him from forming arelationship with the child, no protective order applicable to the child was in effect beforeDecember 2008,[FN3]yet respondent had essentially no contact with the child after 2002 and never provided supportfor her. Moreover, as Family Court observed, respondent did not seek the aid of the court tomodify the 2008 order of protection, and he abandoned a visitation petition that he filed after thefamily offense proceedings that led to the order of protection were commenced. To the extentthat the order of protection did interfere with respondent's ability to contact the child during thesix-month period immediately before the commencement of the adoption proceeding, a findingof abandonment is not precluded "where the biological parent's inability to visit with the childrenresults from his own deliberate acts" (Matter of Joshua II., 296 AD2d 646, 648 [2002],lv denied 98 NY2d 613 [2002]; see Matter of Nathon O., 55 AD3d at 996). Thus,respondent's consent for the child's adoption was not required.
Rose, J.P., Lahtinen, Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: In March 2010, during thependency of the appeal, Family Court entered an order granting the petition for adoption.
Footnote 2: Theresa JJ. also described anoccasion in 2005 when she and the child accidentally encountered respondent while shopping;she stated that no meaningful contact between respondent and the child took place.
Footnote 3: At least one protective orderbarring contact between respondent and the child's maternal grandmother was apparently ineffect before 2008.