Opinion
2015-05-08
In the Matter of MAKIA R.J. and Nakia M.J. Erie County Department of Social Services, Petitioner–Respondent; Michael A.J., Respondent–Appellant.
Jennifer M. Lorenz, Lancaster, for Respondent–Appellant. Joseph T. Jarzembek, Buffalo, for Petitioner–Respondent.
Jennifer M. Lorenz, Lancaster, for Respondent–Appellant. Joseph T. Jarzembek, Buffalo, for Petitioner–Respondent.
David C. Schopp, Attorney for the Children, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel).
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, and WHALEN, JJ.
MEMORANDUM:
Respondent, the biological father of the subject children, contends that Family Court erred in determining, following an evidentiary hearing, that he is not a father whose consent to the adoption of the subject children was required pursuant to Domestic Relations Law § 111. We reject that contention. Section 111(1)(d) providesthat a child born out of wedlock may be adopted without the consent of the child's biological father unless the father shows that he “maintained substantial and continuous or repeated contact with the child as manifested by: (i) the payment by the father toward the support of the child ..., and either (ii) the father's visiting the child at least monthly when physically and financially able to do so ..., or (iii) the father's regular communication with the child or with the person or agency having the care or custody of the child, when physically and financially unable to visit the child or prevented from doing so” (emphasis added). Here, it is undisputed that respondent paid only $99.99 in child support since July 2003, and nothing between 2006–2012, notwithstanding a prior order directing him to pay at least $25.00 per month. Thus, regardless of whether respondent visited the child monthly or regularly communicated with the child, the court properly determined that he was a mere notice father whose consent was not required for the adoption of the subject children ( see Matter of Jules S. [Julio S.], 96 A.D.3d 448, 449, 945 N.Y.S.2d 319, lv. denied 19 N.Y.3d 814, 2012 WL 5201303; see generally Social Services Law § 384–c).
In any event, giving great deference to the court's credibility determinations, as we must ( see Matter of Kennedie M. [Douglas M.], 89 A.D.3d 1544, 1544–1545, 934 N.Y.S.2d 278, lv. denied 18 N.Y.3d 808, 2012 WL 539274; see also Matter of Angelina K. [Eliza W.-Michael K.], 105 A.D.3d 1310, 1312, 964 N.Y.S.2d 343, lv. denied 21 N.Y.3d 860, 2013 WL 3215519), we conclude that the court's further determination that respondent failed to visit or communicate with the child regularly is supported by the requisite clear and convincing evidence ( see Matter of Kevina G. [Kevin C.], 124 A.D.3d 889, 890, 998 N.Y.S.2d 919; Matter of Zachary N. [Paul N.-Hope N.], 77 A.D.3d 1116, 1117, 910 N.Y.S.2d 184).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.