| Matter of William B. |
| 2008 NY Slip Op 00016 [47 AD3d 983] |
| January 3, 2008 |
| Appellate Division, Third Department |
| In the Matter of William B., a Child Alleged to be Abandoned.Broome County Department of Social Services, Respondent; Donald C.,Appellant. |
—[*1] Thomas P. Couslon, Broome County Department of Social Services, Binghamton, forrespondent. Scott B. Nadel, Law Guardian, Binghamton.
Lahtinen, J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered December 5, 2006, which granted petitioner's application, in a proceeding pursuant toSocial Services Law § 384-b, to adjudicate William B. an abandoned child and terminatedrespondent's parental rights.
William B. (born in 2004) was removed from his mother and has been in petitioner's caresince he was two days old. Petitioner immediately placed him with foster parents who apparentlydesire to adopt him. Respondent had cohabitated with the mother during the year prior to thechild's birth and, although the mother initially indicated another man was the father, such personwas proven not to be the father. During the neglect proceeding against the mother, respondent,who was then in prison (where he is serving a long term of incarceration), was listed as theputative, nonadjudicated father. Although reportedly aware of the pregnancy and the child,respondent made no effort to contact the mother, the foster parents, the child or petitioner.[*2]
In December 2005, petitioner brought a proceeding toterminate the mother's rights alleging abandonment and, thereafter, commenced this proceedingon February 8, 2006 alleging that respondent had abandoned the child. Two days after theproceeding against respondent was commenced, the mother filed a paternity petition thateventually resulted in DNA testing establishing that respondent was, in fact, the child's father. Atthe hearing on the abandonment petition, respondent moved to dismiss the petition upon theground that he did not meet the definition of a parent within the meaning of Domestic RelationsLaw § 111. Family Court proceeded with the hearing and ultimately found that respondenthad abandoned the child. Respondent appeals.
We are unpersuaded by respondent's argument that Family Court erred in proceeding with ahearing on the petition. The issue of whether an unwed father is a parent whose consent isnecessary for an adoption (i.e., a "consent father") has been aptly characterized as a " 'thresholdissue' " when proceeding against such an individual in an abandonment proceeding to terminateparent rights (Matter of Tasha M.,33 AD3d 387, 388 [2006], quoting Matter of Carrie GG., 273 AD2d 561, 562[2000], lv denied 95 NY2d 763 [2000]; see Social Services Law § 384-b[4] [b]; Domestic Relations Law § 111 [1] [d]). Even when it appears clear that the fatheris not a consent father (see Domestic Relations Law § 111 [1] [d]), the courtshould not dismiss the petition, but should conduct the hearing and make a determination on thisthreshold issue (see Matter ofDominique P., 14 AD3d 319, 319-320 [2005]). Such a determination provides finality,preventing the father from later attempting to thwart the adoption process, and, while he may beentitled to notice for the limited purpose of addressing the best interests of the child (seeDomestic Relations Law § 111-a), a belated interest in the child will not resurrect a right toconsent (see Matter of Hassan LawrenceW., 42 AD3d 573, 573 [2007]; Matter of Taylor R., 290 AD2d 830, 832[2002]). Here, the record clearly establishes that respondent made no effort to undertake anyresponsibility for or establish a relationship with his child and, in fact, he has conceded that hedid not satisfy the criteria of a consent father.
While the clear and convincing proof establishing that respondent was not a consent fatherwould generally foreclose the need for any further determination regarding him under SocialServices Law § 384-b,[FN1]the fact that the mother commenced a nearly simultaneous proceeding to have respondentadjudicated the father created concern about him asserting rights regarding the child springingfrom such adjudication. Indeed, respondent has asserted on appeal that "the clock started forabandonment purposes" only after he was adjudicated the father some two years after the child'sbirth. While we find no merit to such assertion which is antithetic to the promptness required ofan unwed father in showing an interest in his child (see Matter of Robert O. v Russell K.,80 NY2d 254, 264 [1992]), the parallel proceeding did nevertheless inject an element ofuncertainty in a matter where—for the benefit of the child—clarity and [*3]finality are weighty concerns. And, under such circumstances, wefind no reversible error in Family Court expanding its determination beyond whether respondentwas a consent father.[FN2]
Respondent's contention that petitioner had an obligation to make diligent efforts to reunitethe child with him as a prerequisite to this abandonment proceeding is meritless (see Matterof Tasha B., 240 AD2d 778, 780 [1997]; Matter of Christopher MM., 210 AD2d767, 768 [1994], lv denied 85 NY2d 807 [1995]; Matter of John Z., 209 AD2d821, 822 [1994]).
Mercure, J.P., Peters, Spain and Carpinello, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: The statute states that an ordercommitting guardianship of a child "shall be granted only" on certain specific grounds including,as relevant here, that the abandonment involves "[t]he parent or parents, whose consent to theadoption of the child would otherwise be required in accordance with section one hundred elevenof the domestic relations law" (Social Services Law § 384-b [4] [b]).
Footnote 2: Even if, as urged by respondent,it was error to proceed to the adjudication of abandonment under Social Services Law §384-b, the remedy would not be reversal in this case, but to substitute a finding that respondentwas not a consent father under Domestic Relations Law § 111 (cf. Matter of TaylorR., 290 AD2d at 832-833).