SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

710 

CAF 10-00666 

PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND GREEN, JJ.

 

IN THE MATTER OF THE ADOPTION OF ETHAN S. 

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TARRA C. AND TROY C., PETITIONERS-RESPONDENTS; MEMORANDUM AND ORDER

 

JASON S., RESPONDENT-APPELLANT. 

(APPEAL NO. 1.)

EFTIHIA BOURTIS, ROCHESTER, FOR RESPONDENT-APPELLANT. 

JAMES S. HINMAN, P.C., ROCHESTER (JAMES S. HINMAN OF COUNSEL), FOR

PETITIONERS-RESPONDENTS. 

TANYA J. CONLEY, ATTORNEY FOR THE CHILD, ROCHESTER, FOR ETHAN S. 

 

Appeal from an order of the Family Court, Monroe County (Joseph

G. Nesser, J.), entered July 24, 2009 in an adoption proceeding. The

order, among other things, permitted the adoption of the subject child

to proceed without respondent’s consent. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: In appeal No. 1, respondent, the biological father

of the child in question, appeals from an order determining, following

an evidentiary hearing, that he forfeited his right to consent to the

adoption of the child. In appeal No. 2, the biological father appeals

from an order dismissing his petition for modification of a prior

order of custody and visitation based on Family Court’s determination

in appeal No. 1 that the adoption proceeding was to proceed without

the biological father’s consent. Contrary to the biological father’s

contention in appeal No. 1, the court properly determined that the

adoption could proceed without his consent. Although not addressed by

the court, the threshold issue in such an adoption proceeding is

“whether the consent of the biological father is required, i.e.,

whether he ‘maintained substantial and continuous or repeated contact

with the child as manifested by’ paying support for the child and

either visiting the child at least monthly or regularly communicating

with the child” or with the person having custody of the child (Matter

of Adreona C., 79 AD3d 1768, 1769, quoting Domestic Relations Law §

111 [1] [d]; see Matter of Andrew Peter H. T., 64 NY2d 1090, 1091). 

We note, however, that “ ‘a biological [father]’s failure to visit and

pay support, although significant, are not determinative factors where

they are properly explained’ ” (Matter of Jonna H., 252 AD2d 839, 839;

see Matter of Corey L. v Martin L., 45 NY2d 383, 390).
-2- 710 

CAF 10-00666 

Here, the biological father failed to meet his burden of

establishing his right to consent to the adoption (see Domestic

Relations Law § 111 [1] [d]). The biological father did not provide

any financial support to petitioner mother during the three years

preceding the filing of the adoption petition in February 2009, had

not seen the child since September 2006, and failed to communicate

with the child or the mother from September 2006 to May 2008. 

Although the biological father sent two letters to the mother, one in

May 2008 and another in June 2008, and the biological father’s

counselor called the mother once in May 2008, such insubstantial and

infrequent attempts to contact the mother and the child do not

constitute “substantial and continuous or repeated contact” necessary

to require the biological father’s consent for the adoption (id.; see

Matter of Jaleel E.F., 81 AD3d 1302, 1303). Contrary to the

biological father’s further contention, his substance abuse treatment

did not provide an adequate explanation for his failure to maintain

substantial contact with the child (cf. Jonna H., 252 AD2d at 840). 

The biological father entered substance abuse treatment in October

2007 and chose not to contact the mother or the child, despite the

fact that he had a cell phone, as well as access to the mail service

and the Internet. 

In view of our determination in appeal No. 1, we conclude that

the court properly dismissed the biological father’s petition in

appeal No. 2. 

Entered: June 10, 2011 Patricia L. Morgan

Clerk of the Court