| Matter of Kira OO. |
| 2007 NY Slip Op 08148 [45 AD3d 933] |
| November 1, 2007 |
| Appellate Division, Third Department |
| In the Matter of Kira OO., an Infant. Melissa PP. et al.,Respondents; Nina OO., Appellant, et al., Respondent. (And Two Other RelatedProceedings.) |
—[*1] Barton & Smith, Elmira (Christopher A. Barton of counsel), for Melissa PP., respondent. Norbert A. Higgins, Law Guardian, Binghamton.
Kane, J. Appeal from an order of the Family Court of Chemung County (Hayden, J.), enteredOctober 18, 2006, which, among other things, granted petitioners' application, in a proceedingpursuant to Domestic Relations Law article 7, to determine that the consent of respondent NinaOO. was not required for the adoption of her child.
In 1999, respondent Nina OO. (hereinafter the mother), at the age of 15, gave birth to a child.The mother shared joint custody with the maternal grandmother until the child was two years old.Custody was later transferred to the mother and her sister, petitioner Melissa PP. (hereinafterpetitioner). The mother lived with petitioner for a time, moving out in early 2003. Petitioner andthe mother alternated physical placement of the child until 2004, at which point petitionerprimarily cared for the child and the mother visited but without a set schedule. In July 2005, themother took the child for a short visit but never returned, instead taking the child to a [*2]known drug house resulting in police and court intervention.Petitioner filed a modification petition and obtained temporary custody, prompting the mother tocross-petition for custody. When the mother failed to appear, Family Court granted petitionersole legal and physical custody, without prejudice to the mother refiling, and ordered that thechild not be relocated outside the county.
In February 2006, petitioner filed a petition seeking permission to relocate with the child to aneighboring county where she and her husband intended to move. The mother cross-petitionedfor custody. After a court appearance where petitioner's counsel mentioned that petitioner and herhusband would soon be filing an adoption petition based on the mother's abandonment, themother visited the child at school. Petitioner and her husband filed the adoption petition a fewdays later. At the conclusion of a hearing on the petitions, Family Court determined that themother's consent to adoption was not required based on her abandonment of the child. The courtthen dismissed the other petitions. The mother appeals.
Family Court properly determined that the mother's consent to adoption was not required.Consent to adoption is not required of a parent who demonstrates an intent to forego parentalrights "as manifested by his or her failure for a period of six months to visit the child andcommunicate with the child or person having legal custody of the child, although able to do so"(Domestic Relations Law § 111 [2] [a]; see Matter of Morgaine JJ., 31 AD3d 931, 932 [2006]). Parents arepresumed to have the ability to communicate with the child and the child's custodian, andpayment of reasonable child support is considered a substantial communication (seeDomestic Relations Law § 111 [6] [a], [d]).
Petitioner proved by clear and convincing evidence that the mother failed to have anymeaningful contact with the child or pay any support during the six months preceding the filingof the petition, thereby shifting the burden to the mother to demonstrate sufficient contact or herinability to make such contact (see Matter of Morgaine JJ., 31 AD3d at 932). The motherdid not adequately explain her failure to meet her parental obligations to visit and communicatewith the child or custodian, so as to excuse her failures and preclude a finding of abandonment,but instead only showed a "flicker of interest" in the child (Matter of Sara HH., 266AD2d 779, 780 [1999]; see Matter of Joshua, 216 AD2d 749, 751 [1995], lvdenied 86 NY2d 709 [1995]). Petitioner, her husband and the mother all testified that themother paid no child support during the six-month period at issue. The mother did not call, writeor visit the child or petitioner, her own sister, despite knowing the address and phone number.Approximately six months prior to the filing of the petition, the mother stopped by petitioner'shouse and was unable to see the child because she was napping. The mother did not return andhad no contact with the child from that point until a few days before the adoption petition wasfiled, even though that period included Christmas and the child's birthday. Her contact around thetime of filing consisted of an unannounced visit to the child's school where the mother had thechild removed from class to see her. While this contact occurred during the relevant period, themother only made this effort after the relocation petition was filed and petitioner's counseldeclared in open court an intention to file an adoption petition alleging abandonment. This onevisit appears to be "nothing more than an effort to block the adoption" (Matter of SergioLL., 269 AD2d 699, 701 [2000]).
While the mother alleges that petitioner thwarted her efforts to visit or contact the child, wegive deference to Family Court's credibility determinations in favor of petitioner (see Matterof Morgaine JJ., 31 AD3d at 932-933). The mother knew how to petition the court forcustody or visitation, as she had done before, but she never filed a petition alleging interferencewith [*3]visitation or requesting a visitation schedule. Shedefaulted in appearance on her prior custody petition and failed to refile, despite language in thecourt order permitting refiling.
The mother alleges that as a matter of law she cannot be found to have abandoned the childbecause she filed a custody petition prior to petitioner and her husband's filing of the adoptionpetition. While the intent to forego parental rights is normally negated where a parent files apetition for custody or visitation prior to the commencement of adoption proceedings, such afinding is not mandated as a matter of law. Here, the mother previously defaulted on her custodypetition, made no meaningful efforts to visit or contact the child or the child's custodian, and onlyfiled a new custody petition in response to petitioner's relocation petition (cf. Matter ofMorgaine JJ., 31 AD3d at 933 [abandoning parent filed visitation modification petition onlyafter other parent filed petition to terminate visitation and adoption hearing commenced];compare Matter of Maria S., 145 Misc 2d 99 [1989] [no abandonment where, prior tofiling of adoption petition, parent filed visitation petition, obtained temporary order of visitationand exercised visitation pursuant to order]). Under these particular circumstances, we find thatthe court correctly determined that the mother's consent to adoption was not required because sheabandoned the child.
Mercure, J.P., Peters, Spain and Carpinello, JJ., concur. Ordered that the order is affirmed,without costs.