| Matter of Tiara G. (Theresa G.\MNorman A.) |
| 2010 NY Slip Op 04188 [73 AD3d 920] |
| May 11, 2010 |
| Appellate Division, Second Department |
| In the Matter of Tiara G., an Infant. Theresa G., Respondent;Norman A., Jr., Appellant, et al., Respondent. (Proceeding No. 1.) In the Matter of Theresa G.,Respondent. Mariana G. et al., Respondent; Norman A., Jr., Appellant. (Proceeding No.2.) |
—[*1] Blumberg, Cherkoss, Fitz Gibbons & Blumberg, LLP, Amityville, N.Y. (Val Cherkoss ofcounsel), for petitioner-respondent. Susan Selanikio Linder, West Islip, N.Y., attorney for the child.
In an adoption proceeding pursuant to Domestic Relations Law article 7 and a relatedvisitation proceeding pursuant to Family Court Act article 6, the father appeals, as limited by hisbrief, from so much of an order of the Family Court, Suffolk County (Tarantino, Jr., J.), datedJune 15, 2009, as determined, after a hearing, that his consent to the adoption of his child wasnot required because he had abandoned the child, and denied his petition for visitation.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The Family Court properly determined, after a consolidated hearing on the adoption andvisitation petitions, that the father's consent to the adoption of the child by the petitioner, hermaternal grandmother, was not required. Consent to adoption is not required of a parent whodemonstrates an intent to forgo parental rights "as manifested by his or her failure for a period ofsix months to visit the child and communicate with the child or person having legal custody ofthe child, although able to do so" (Domestic Relations Law § 111 [2] [a]; see Matter of Anonymous, 20 AD3d562, 563 [2005]). Contrary to the father's contention, the petitioner sustained her burden ofestablishing, by clear and convincing evidence (see Matter of Anonymous, 20 AD3d at563), that the father abandoned the child inasmuch as the father admitted that he had not visitedwith the child or communicated with her in any way for more than two years preceding the filingof the adoption petition, which would include the relevant six-month time period preceding thefiling of the adoption petition of September 2007 through March 2008. While the father contendsthat his drug and alcohol addiction rendered him unable to visit or communicate with the child,[*2]he testified that, after attending a rehabilitation program, hehad not been using drugs or alcohol for three years prior to the May 8, 2009, consolidatedhearing. Moreover, the father's testimony that he gave, on an unidentified number of occasions inNovember 2008 and December 2008, $50 to $150 to the child's mother, who did not havecustody of, or visitation with, the child at that time, was insufficient to constitute communicationwith the child pursuant to Domestic Relations Law § 111 (6) (d), particularly in light ofthe mother's testimony that she did not receive money, but only received two stuffed animalsfrom the father to give to the child.
Accordingly, the Family Court properly determined that the father's consent to the child'sadoption was not required (see Domestic Relations Law § 111 [2] [a]; Matter of Ashley P., 31 AD3d767, 768 [2006]; Matter of Anonymous, 20 AD3d at 562-563; Matter of T.,291 AD2d 565, 566 [2002]; Matter of Shaolin G., 277 AD2d 312, 313 [2000]; Matterof Kristin O., 220 AD2d 670, 670-671 [1995]), and properly denied the father's visitationpetition (see Matter of Kevin W. vMonique T., 38 AD3d 672, 673 [2007]).
The father's remaining contentions are without merit. Dillon, J.P., Balkin, Lott and Sgroi, JJ.,concur.