Opinion
530282
11-25-2020
In the MATTER OF JAEDYN U., an Infant. Keaysie T. et al., Respondents; v. Patrick U., Appellant.
Lisa A. Burgess, Indian Lake, for appellant. Rose T. Place PLLC, Glens Falls (Rose T. Place of counsel), for respondents. Trinidad M. Martin, Glens Falls, attorney for the child.
Lisa A. Burgess, Indian Lake, for appellant.
Rose T. Place PLLC, Glens Falls (Rose T. Place of counsel), for respondents.
Trinidad M. Martin, Glens Falls, attorney for the child.
Before: Garry, P.J., Clark, Devine, Aarons and Reynolds Fitzgerald, JJ.
MEMORANDUM AND ORDER
Aarons, J.
Petitioner Keaysie T. (hereinafter the mother) and respondent (hereinafter the father) are the unmarried parents of a child (born in 2010). According to a March 2013 order, the father was required to make weekly child support payments to the mother. In 2019, the mother married petitioner Logan T. and, shortly after their marriage, they commenced this proceeding for an order permitting Logan T. to adopt the child. Following a hearing, Family Court granted the petition. The father appeals. We affirm.
As an initial matter, we note that, in granting the petition, Family Court expressly found that the hearing evidence established that the father intended to "forego his parental and custodial rights and obligations for a period of six months" by "fail[ing] to contact or visit with his son and ... fail[ing] to communicate with [the mother] regarding visits." Such finding, however, relates to whether the father forfeited his right to consent to the proposed adoption (see Domestic Relations Law § 111[2][a] ). Before making this finding, the court first had to determine whether the father had the right to consent to the adoption based upon criteria set forth in Domestic Relations Law § 111(1)(d) (see Matter of Khrystopher EE. [David FF.–Michael EE.], 182 A.D.3d 672, 693, 122 N.Y.S.3d 691 [2020] ; Matter of Blake I. [Richard H.–Neimiah I.], 136 A.D.3d 1190, 1191, 26 N.Y.S.3d 793 [2016] ). Only after it is demonstrated that the father had the right to consent to the adoption does a court consider whether he forfeited that right (see Matter of Andrew Peter H. T., 64 N.Y.2d 1090, 1091, 489 N.Y.S.2d 882, 479 N.E.2d 227 [1985] ). Although the court did not make the threshold finding as to whether the father had the right to consent, we need not remit the matter for such purpose given that we have the independent authority to do so (see Matter of Blake I. [Richard H.–Neimiah I.], 136 A.D.3d at 1191, 26 N.Y.S.3d 793 ).
The father had the right to consent to the adoption if he "maintained substantial and continuous or repeated contact with the child" ( Domestic Relations Law § 111[1][d] ). Such contact may be shown by "payment of reasonable child support and either monthly visitation or regular communication with the child or custodian" ( Matter of Ysabel M. [Ysdirabellinna L.—Elvis M.], 137 A.D.3d 1502, 1503, 28 N.Y.S.3d 739 [2016] ; see Domestic Relations Law § 111[1][d][i]-[iii] ; Matter of Asia ZZ. [Henry A.–Jason V.], 97 A.D.3d 865, 866, 947 N.Y.S.2d 682 [2012] ). As to the support obligation requirement, the record establishes that the father failed to make regular payments to the mother since the March 2013 order had been in place. The mother received approximately $449, but the father still owed her over $6,500 in child support payments – amounts that the father does not dispute. The father was incarcerated for a period of time following the March 2013 order. This fact, however, did not relieve him of his obligation to support the child, especially where there was no evidence indicating that he had insufficient income or resources to meet his support obligations (see Matter of Maurice N. [Carlos O.], 128 A.D.3d 1117, 1118, 8 N.Y.S.3d 475 [2015] ; Matter of John Q. v. Erica R., 104 A.D.3d 1097, 1098–1099, 962 N.Y.S.2d 487 [2013] ; Matter of Dakiem M. [Demetrius O.–Dakiem N.], 94 A.D.3d 1362, 1363, 943 N.Y.S.2d 629 [2012], lv denied 19 N.Y.3d 807, 2012 WL 2401561 [2012] ). In view of the foregoing, the father did not have the right to consent to the proposed adoption (see Matter of Blake I. [Richard H.–Neimiah I.], 136 A.D.3d at 1192, 26 N.Y.S.3d 793 ; Matter of Maurice N. [Carlos O.], 128 A.D.3d at 1118, 8 N.Y.S.3d 475 ). The petition was therefore correctly granted.
The failure to satisfy the support component of Domestic Relations Law § 111(1)(d) is sufficient by itself to warrant a finding that the father's consent for the adoption was not required (see
Garry, P.J., Clark, Devine and Reynolds Fitzgerald, JJ., concur.
ORDERED that the order is affirmed, without costs.
Matter of Russell J. v. Delaware County Dept. of Social Servs., 170 A.D.3d 1433, 1434–1435, 96 N.Y.S.3d 742 [2019] ). Accordingly, it is unnecessary to address the communication component of that statute (see Matter of Blake I. [Richard H.–Neimiah I.], 136 A.D.3d 1190, 1191 n. 2, 26 N.Y.S.3d 793 [2016] ).