| Matter of Nathon O. |
| 2008 NY Slip Op 07824 [55 AD3d 995] |
| October 16, 2008 |
| Appellate Division, Third Department |
| In the Matter of Nathon O., an Infant. Michael P., Respondent; DavidQ., Appellant. (And Two Other Related Proceedings.) |
—[*1] Abigail DeLoache, Ithaca, for respondent.
Lahtinen, J. Appeal from an order of the Surrogate's Court of Tompkins County (Rowley, S.),entered September 7, 2007, which, in three proceedings pursuant to Domestic Relations Law article 7,granted petitioner's motion for summary judgment declaring that respondent's consent was not requiredfor the adoption of the subject children.
Respondent is the biological father of Nathon O. (born in 1994), Kaitlyn O. (born in 1997) andIsaiah O. (born in 1999). In 2001, he pleaded guilty to various sex crimes perpetrated upon his familymembers which resulted in a sentence of incarceration as well as an order of protection prohibitingcontact or communication with the children and their mother until 2011. The mother was granted solecustody of the children in 2001, she divorced respondent in 2003, and she married petitioner in 2005.In November 2006, petitioner commenced these proceedings seeking to adopt the children. Hesubsequently moved for summary judgment asserting that respondent's consent for the adoptions wasnot necessary because respondent had abandoned the [*2]children.Surrogate's Court granted the motion and respondent appeals.[FN*]
We affirm. Petitioner, as the person asserting that respondent's consent for adoption was notnecessary, had the burden to "establish, by clear and convincing evidence, that respondent has'evince[d] an intent to for[ ]go his . . . parental or custodial rights and obligations asmanifested by his . . . failure for a period of six months to visit the child and communicatewith the child or person having legal custody of the child, although able to do so' " (Matter of Joshua FF., 11 AD3d 738,739 [2004], lv denied 4 NY3d 703 [2005], quoting Domestic Relations Law § 111 [2][a]). "Once the petitioner makes such a showing . . . , the burden shifts to the parent todemonstrate sufficient contact or an inability to engage in such contact" (Matter of Morgaine JJ., 31 AD3d 931,932 [2006]). Petitioner shifted the burden to respondent by proof that included, among other things, anaffidavit from the mother stating that respondent has not had any contact with the children or providedany support for them since May 2000.
In response, respondent described some of his minimal efforts to provide support and establishcontact that did not violate the protective order. However, most of those efforts occurred several yearsearlier and he did not detail such efforts occurring within six months of the filing of the petition.Moreover, "[i]n a case such as this one where the biological parent's inability to visit with the childrenresults from his own deliberate acts, the underlying circumstances need not preclude a finding of a lackof contact with the children evincing an intent to abandon them" (Matter of Joshua II., 296AD2d 646, 648 [2002], lv denied 98 NY2d 613 [2002]; see Matter of Julia P., 306AD2d 937, 938 [2003]).
We have considered and find unavailing respondent's contention that it was an abuse of discretionfor Surrogate's Court not to appoint counsel for the children prior to deciding petitioner's motion(see Matter of Joshua FF., 11 AD3d at 740).
Mercure, J.P., Peters, Rose and Kane, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: The October 4, 2007 notice ofappeal recited only the September 4, 2007 decision and not the September 7, 2007 order. To theextent this was error (cf. CPLR 5501 [c]), we agree with the urging of both parties that wetreat the notice of appeal as valid and reach the merits in the interest of justice (see Matter of Rebecca KK., 31 AD3d830, 831 n [2006]).