| Matter of Vanessa Ann G.-L. |
| 2008 NY Slip Op 03647 [50 AD3d 1036] |
| April 22, 2008 |
| Appellate Division, Second Department |
| In the Matter of Vanessa Ann G.-L. Nassau County Department ofSocial Services, Respondent; Calvin L.L., Appellant, et al.,Intervenors. |
—[*1] Lorna Bade Goodman, County Attorney, Mineola, N.Y. (Karen Hutson of counsel), forrespondent. Theresa Kloeckener, Valley Stream, N.Y., attorney for the child. Carrieri & Carrieri, P.C., Mineola, N.Y. (Ralph R. Carrieri of counsel), forintervenors.
In a proceeding pursuant to Family Court Act article 10 to terminate the father's parentalrights, the father appeals from an order of the Family Court, Nassau County (Zimmerman, J.),dated August 4, 2006, which granted the petitioner's motion for a determination that his consentto the adoption of the subject child was not required pursuant to Domestic Relations Law §111 (2) (a).
Ordered that the order is reversed, on the law, without costs or disbursements, and thepetitioner's motion for a determination that the father's consent to the adoption of the subjectchild was not required pursuant to Domestic Relations Law § 111 (2) (a) is denied.
The subject child Vanessa was born on October 19, 2002 with a positive toxicology forcocaine and was immediately removed from the birth mother's custody and placed with the fosterparents, where she currently resides. However, when the child was initially placed with the fosterparents, she was not placed for adoption. The goal at that time was to return the child to the birthmother.
At the time of the child's birth, the biological father had no contact with the birth mother andwas unaware of the child's birth. On November 6, 2003 the father filed a petition to establish his[*2]paternity. On April 7, 2004 the Family Court granted hispetition after blood tests established his paternity. The father commenced paying child supportthrough a wage deduction order and commenced supervised visitation. On March 30, 2005 thefather petitioned for custody. No hearing was held on that petition due to a dispute over whetherthe foster parents would be granted leave to intervene in the custody proceeding (see Matter of Calvin L. v Nassau CountyDept. of Social Servs., 43 AD3d 445 [2007]). On November 21, 2005 the petitionercommenced the instant proceeding to terminate the father's parental rights based upon permanentneglect. The petition alleged that the birth mother was willing to surrender the child for adoptionon condition that the foster parents adopt her.
In December 2005 the birth mother died. Thereafter, in the proceeding to terminate thefather's parental rights, the petitioner moved for a determination that the father's consent to theproposed adoption by the foster parents was not required pursuant to the provisions of DomesticRelations Law § 111 (2) (a). A hearing was held on that motion. At that hearing, thepetitioner stipulated that, once paternity was established in April 2004 the father visited with thechild and paid child support. Its contention was that the father's consent was not required becausehe failed to establish his paternity in the "crucial" first year of the child's life.
The petitioner limited its proof to the period between the child's birth and the father'scommencement of a paternity proceeding on November 6, 2003. The father testified that in thetwo years since his paternity was established in April 2004, he paid child support, visited thechild weekly, filed a custody petition, completed two parenting classes at the request of thepetitioner, moved to a new apartment, and did everything else requested of him.
In the order appealed from, the Family Court found that the father's consent to the adoptionwas not required because the father did not establish his paternity until April 2004. The FamilyCourt applied the law with respect to newborns placed for adoption, finding that Matter ofRobert O. v Russell K. (80 NY2d 254 [1992]) provided the most guidance in determining theissues in this case. In Matter of Robert O. v Russell K. (80 NY2d 254 [1992]), the Courtof Appeals held that the father of a nonmarital child placed for adoption at birth had aconstitutional right to an "opportunity" to develop a relationship with the child if the fatherpromptly expressed a willingness to assume full custody.
However, in the instant case, the child was not placed for adoption at birth. Since the issue ofadoption did not arise until the child was more than six months old, Domestic Relations Law§ 111 (1) (d) should have been applied (see Matter of Ericka Stacey B., 27 AD3d 245, 246 [2006]).Domestic Relations Law § 111 (1) (d) states that the consent of the father of a nonmaritalchild placed for adoption more than six months after birth is required if the father has:"maintained substantial and continuous or repeated contact with the child manifested by (i) thepayment by the father toward the support of the child of a fair and reasonable sum, according tothe father's means and either (ii) the father's visiting the child at least monthly when physicallyand financially able to do so and not prevented from doing so by the person or authorized agencyhaving lawful custody of the child, or (iii) the father's regular communication with the child orwith the person or agency having the care or custody of the child." Pursuant to DomesticRelations Law § 111 (2) (a), which was cited by the petitioner as the determinativeprovision in the petition, a consent father may forfeit his rights by failure to visit with [*3]or communicate with the child for six months preceding the filingof an adoption petition (see Matter of Baby Girl W.D., 251 AD2d 501 [1998]; Matterof Joseph, 227 AD2d 974 [1996]). At a hearing on the issue of abandonment, the evidenceneed not be limited to the six-month period immediately preceding the filing of an adoptionpetition. Evidence for a longer period which includes the period immediately preceding the filingof the adoption petition may be considered (see Matter of Anonymous, 20 AD3d 562, 563 [2005]; Matter ofTaylor O.P., 303 AD2d 1024 [2003]). Generally, however, more recent events are mostrelevant (see Matter ofMaxamillian, 6 AD3d 349 [2004]).
In the instant case, the father testified that he regularly visited the child, paid child support,and did all that was requested of him. The petitioner did not refute that testimony. Rather, itstipulated that once paternity was established in April 2004, the father visited with the child andpaid child support. This evidence established that the father met the standards for a consent fatherpursuant to Domestic Relations Law § 111 (1) (d). There was no evidence of abandonmentpursuant to Domestic Relations Law § 111 (2) (a) (see Matter of Devin F., 41 AD3d 1197 [2007]). Accordingly, thefather's consent to the adoption is required. Skelos, J.P., Dillon, Leventhal and Chambers, JJ.,concur.