Opinion
1820
October 9, 2003.
Order of disposition, Family Court, New York County (Susan Larabee, J.), entered on or about September 4, 2001, which, in a proceeding to terminate the parental rights of the subject child's mother, insofar as appealed from, determined after a hearing that respondent father's consent to adoption is not required, unanimously affirmed, without costs.
Margaret Tarvin, for Jonathan Logan P.
Dora M. Lassinger, for respondent-appellant.
David A. Lore, for petitioner-respondent.
Before: Nardelli, J.P., Tom, Sullivan, Ellerin, Friedman, JJ.
As the father of a child born out-of-wedlock, respondent's consent to the child's adoption is not required absent a showing that he provided financial support according to his means, and either visited the child at least monthly or, if visitation was not possible, communicated regularly with the child or the child's custodians (Domestic Relations Law § 111[d]; see Matter of Sierra, 289 A.D.2d 1076). Respondent made no such showing. His incarceration for most of the child's life does not excuse the failure to establish communication (see Matter of Kianna C., 292 A.D.2d 380), and neither the few inquiries he made concerning the child's whereabouts, nor the successful filiation proceeding he brought shortly before the commencement of the instant proceeding, satisfy the standard of contact required by the statute (cf. Matter of Raquel Marie X., 76 N.Y.2d 387, 402, cert denied sub nom. Robert C. v. Miguel T., 498 U.S. 984). Nor is there merit to respondent's claim that the statute is unconstitutional in imposing support and visitation requirements on unwed fathers but not unwed mothers. "[T]he mere existence of a biological link does not merit equivalent constitutional protection" (Lehr v. Robertson, 463 U.S. 248, 261). We have considered and rejected respondent's other arguments.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.