Opinion
2022-02603 Docket No. A-1673-20
04-19-2023
In the MATTER OF RYAN (Anonymous). Jessica D. (Anonymous), et al., respondents; v. Timothy A. (Anonymous), appellant.
Kelley M. Enderly, Poughkeepsie, NY, for appellant. Ronald J. McGaw, Poughkeepsie, NY, attorney for the child.
Kelley M. Enderly, Poughkeepsie, NY, for appellant.
Ronald J. McGaw, Poughkeepsie, NY, attorney for the child.
BETSY BARROS, J.P., LARA J. GENOVESI, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an adoption proceeding, the father appeals from an order of the Family Court, Dutchess County (Tracy C. MacKenzie, J.), dated April 4, 2022. The order, after a hearing, determined that the father's consent to the adoption of the subject child was not required.
ORDERED that on the Court's own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see Family Ct Act § 1112[a] ); and it is further,
ORDERED that the order is affirmed, without costs or disbursements.
The subject child was born in March 2017. The child's mother was killed in November 2018, and criminal proceedings were commenced against the father in connection with the death of the mother. The petitioners, who are the child's maternal aunt and uncle, have had custody of the child since March 2019. In April 2021, the father was convicted of murder in the second degree for the killing of the mother.
In June 2020, the petitioners filed a petition to adopt the child, alleging, inter alia, that pursuant to Domestic Relations Law § 111(2)(a), the father's consent to adoption was not required. After a hearing, which was held after the father's request for an adjournment was denied, the Family Court determined that the father had abandoned the child and that the father's consent to the adoption of the child therefore was not required. The father appeals.
"The granting of an adjournment for any purpose rests within the sound discretion of the Family Court upon a balanced consideration of all relevant factors" ( Matter of Katie M.T.-J. v. Jemel D.T., 206 A.D.3d 651, 652, 170 N.Y.S.3d 153 ; see Matter of Steven B., 6 N.Y.3d 888, 817 N.Y.S.2d 599, 850 N.E.2d 646 ). "The determination to grant or deny an adjournment will not be overturned absent an improvident exercise of discretion" ( Matter of Katie M.T.-J. v. Jemel D.T., 206 A.D.3d at 652, 170 N.Y.S.3d 153 ; see Matter of Anthony M., 63 N.Y.2d 270, 283–284, 481 N.Y.S.2d 675, 471 N.E.2d 447 ). Contrary to the father's contention, under the circumstances, the Family Court did not improvidently exercise its discretion in denying the father's request for an adjournment of the scheduled hearing, which was made on the date of the hearing (see Matter of Jacqueline E.S.B. [Daniel B.], 160 A.D.3d 828, 829, 74 N.Y.S.3d 612 ; Matter of Serenity C.W. [Antoinette W.], 158 A.D.3d 716, 717, 68 N.Y.S.3d 735 ; Matter of N. [Fania D.-Alice T.], 108 A.D.3d 551, 552–553, 969 N.Y.S.2d 92 ).
Furthermore, the petitioners met their burden of establishing, by clear and convincing evidence, that the father abandoned the child, and that the father's consent to the adoption therefore was not required (see Matter of Liliana [Kristal L.L.-Jamie L.J.], 213 A.D.3d 665, 665–666, 182 N.Y.S.3d 266 ). Pursuant to Domestic Relations Law § 111(2)(a), consent to adoption is not required of a parent who evinces an intent to forego his or her parental rights and obligations by his or her failure for a period of six months to contact or communicate with the child or the person having legal custody of the child although able to do so (see Matter of Jahnya [Cozbi C.-Camesha B.], 189 A.D.3d 824, 826, 137 N.Y.S.3d 105 ; Matter of Tyler [Tudian C.P.-Tyler S.O.], 134 A.D.3d 1130, 1131, 23 N.Y.S.3d 291 ). Here, the evidence at the hearing established that the father had no contact with the child since 2018. The father's incarceration did not absolve him of the responsibility to maintain contact with the child (see Matter of Prinzivalli v. Kaelin, 200 A.D.3d 781, 782–783, 160 N.Y.S.3d 268 ). In addition, the evidence established that between March 2019, when the petitioners obtained custody of the child, and March 2022, when the hearing occurred, the father did not send any letters or gifts to the child or provide any financial support (see Matter of Adrianna [Dominick I.-Jessica F.], 144 A.D.3d 1145, 1146, 42 N.Y.S.3d 298 ).
Accordingly, the Family Court properly determined that the father abandoned the child and that the father's consent to the adoption of the child therefore was not required.
BARROS, J.P., GENOVESI, DOWLING and VOUTSINAS, JJ., concur.