Opinion
776 CAF 18–01199
09-27-2019
In the MATTER OF the ADOPTION OF BRIANNA B. Swazette S., Petitioner–Respondent, v. Stacey B., Respondent, and Shacoya L., Respondent–Appellant.
PETER J. DIGIORGIO, JR., UTICA, FOR RESPONDENT–APPELLANT. ROSSI & ROSSI, NEW YORK MILLS (VINCENT J. ROSSI, JR., OF COUNSEL), FOR PETITIONER–RESPONDENT.
PETER J. DIGIORGIO, JR., UTICA, FOR RESPONDENT–APPELLANT.
ROSSI & ROSSI, NEW YORK MILLS (VINCENT J. ROSSI, JR., OF COUNSEL), FOR PETITIONER–RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent Shacoya L., the biological mother of the subject child, appeals from an order determining, following an evidentiary hearing, that she abandoned the child and that her consent to the adoption of the child by petitioner, who has had custody of the child since birth, is not required pursuant to Domestic Relations Law § 111. The biological mother contends, in effect, that Family Court erred in denying her motion to dismiss the petition for adoption as facially insufficient. We reject that contention. Upon giving the petition a liberal construction, accepting the facts alleged therein as true, and according petitioner the benefit of every favorable inference (see Matter of Machado v. Tanoury, 142 A.D.3d 1322, 1323, 38 N.Y.S.3d 356 [4th Dept. 2016] ; see generally Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ), we conclude that petitioner adequately alleged that the biological mother's consent to adoption was not required due to her abandonment of the child (see Domestic Relations Law § 111[2][a] ; [6][a], [b] ). To the extent that the mother's contention may be construed as a jurisdictional challenge, we conclude that her contention lacks merit (see Family Ct. Act § 641 ; Matter of El–Sheemy v. El–Sheemy, 35 A.D.3d 738, 739, 826 N.Y.S.2d 695 [2d Dept. 2006] ).
We reject the biological mother's further contention that the court erred in dispensing with her consent to the adoption of the child on the ground of abandonment. A mother's consent to adoption is required unless she "evinces an intent to forego ... her parental or custodial rights and obligations as manifested by ... her failure for a period of six months to visit the child and communicate with the child or person having legal custody of the child, although able to do so" ( Domestic Relations Law § 111[2][a] ; see § 111[1][b], [c] ). "Where the person having custody of the child thwarts or interferes with the noncustodial parent's efforts to visit or communicate with the child, a finding of abandonment is inappropriate" ( Matter of Lydia A.C. v. Gregory E.S. , 155 A.D.3d 1680, 1681, 64 N.Y.S.3d 833 [4th Dept. 2017] ). "The party seeking a finding of abandonment has the burden of establishing abandonment by clear and convincing evidence" ( id. ).
Here, contrary to the biological mother's initial contention, the court did not err in considering her contact with the child and communication with petitioner during the six-month period immediately preceding the filing of the petition (see Domestic Relations Law § 111[2][a] ; Matter of Adreona C. [Andrew C.—Andrew R.], 79 A.D.3d 1768, 1769, 914 N.Y.S.2d 546 [4th Dept. 2010] ; Matter of Patrick D., 52 A.D.3d 1280, 1280, 860 N.Y.S.2d 697 [4th Dept. 2008], lv denied 11 N.Y.3d 711, 872 N.Y.S.2d 73, 900 N.E.2d 556 [2008] ). Furthermore, although the court was presented with the conflicting testimony of petitioner and the biological mother regarding the substance and frequency of such contact and communication during the six-month period, the court resolved that credibility issue in favor of petitioner. It is well established that "the court's credibility determinations are ... entitled to great deference" ( Matter of Angelina K. [Eliza W.—Michael K.], 105 A.D.3d 1310, 1312, 964 N.Y.S.2d 343 [4th Dept. 2013], lv denied 21 N.Y.3d 860, 2013 WL 3215519 [2013] [internal quotation marks omitted] ), and we see no basis to disturb the court's determination here. The testimony credited by the court established that, during the six-month period, the biological mother did not call petitioner, nor did she visit, write to, or provide any gifts for the child, and the biological mother's only contact with the child was a brief interaction initiated by petitioner at another individual's home during which the biological mother did not want to hold the child. "Such insubstantial and infrequent contact is insufficient to preclude a finding of abandonment" ( Matter of Amanda, 197 A.D.2d 923, 924, 602 N.Y.S.2d 461 [4th Dept. 1993], lv denied 82 N.Y.2d 662, 610 N.Y.S.2d 150, 632 N.E.2d 460 [1993] ; see Domestic Relations Law § 111[6][b] ; Patrick D., 52 A.D.3d at 1281, 860 N.Y.S.2d 697 ). Finally, "[t]he court was entitled to discredit the testimony of the [biological] mother that petitioner[ ] thwarted her efforts to contact the child" ( Patrick D. , 52 A.D.3d at 1281, 860 N.Y.S.2d 697 ), and we conclude that the record does not support the biological mother's contention that petitioner interfered with any such efforts (see Matter of Brittany S. , 24 A.D.3d 1298, 1299, 806 N.Y.S.2d 324 [4th Dept. 2005], lv denied 6 N.Y.3d 708, 813 N.Y.S.2d 44, 846 N.E.2d 475 [2006]; Amanda, 197 A.D.2d at 924, 602 N.Y.S.2d 461 ).