State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 18, 2016 521248 

________________________________

In the Matter of BLAKE I.,

an Infant.

RICHARD H. et al.,

Respondents; MEMORANDUM AND ORDER

NEIMIAH I.,

Appellant.

________________________________

Calendar Date: January 12, 2016

Before: Peters, P.J., McCarthy, Rose and Lynch, JJ.

__________

Robert N. Gregor, Lake George, for appellant.

Matte & Nenninger, PC, Glens Falls (Jeffrey C. Matte of

counsel), for respondents.

__________

Peters, P.J.

Appeal from an order of the Family Court of Washington

County (Wait, J.), entered June 11, 2015, which granted

petitioners' application, in a proceeding pursuant to Domestic

Relations Law article 7, to determine that respondent's consent

was not required for the adoption of his child.

Respondent (hereinafter the father) and petitioner Kelsey

H. (hereinafter the mother), who were never married, are the

biological parents of a son (born in 2008). In 2009, the mother

was awarded sole legal and physical custody of the child and the

father was given 10 minutes of biweekly parenting time. The

mother married petitioner Richard H. (hereinafter the stepfather)

in 2011 and the two have lived together continuously with the
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child since that time. The father was released from prison in

August 20131 and was reincarcerated in March 2014 upon his

conviction of a drug felony, for which he received a sentence of

five years in prison. In January 2015, petitioners commenced

this proceeding seeking the stepfather's adoption of the child.

Following a hearing, Family Court determined that the father's

consent to the adoption was not required pursuant to Domestic

Relations Law § 111 (2) (a) because he evinced an intent to

abandon his parental rights. The father appeals. 

We affirm, albeit on a different ground. "[T]here are two

steps in determining whether the biological father's consent may

be dispensed with in a proceeding seeking approval of the

adoption of [a] child" over six months old who was born out of

wedlock (Matter of Anthony S., 291 AD2d 702, 702 [2002], lv

denied 98 NY2d 609 [2002]; see Matter of Andrew Peter H.T., 64

NY2d 1090, 1091 [1985]). The threshold inquiry is whether the

biological father has established a right to consent to the

adoption by "maintain[ing] a substantial and continuous or

repeated relationship with the child by means of financial

support according to the father's means and either monthly

visitation, when physically and financially able to do so, or

regular communication with the child or the child's caregiver"

(Matter of Dakiem M. [Demetrius O.—Dakiem N.], 94 AD3d 1362, 1362

[2012], lv denied 19 NY3d 807 [2012] [internal quotation marks,

brackets and citation omitted]; see Domestic Relations Law § 111

[1] [d]; Matter of Andrew Peter H. T., 64 NY2d at 1091; Matter of

Ethan S. [Tarra C.–Jason S.], 85 AD3d 1599, 1599 [2011], lv

denied 17 NY3d 711 [2011]). "Only after the [biological] father

establishes his right of consent to the adoption, by satisfying

both the support and communication provisions of the statute,

does the court proceed to determine whether he has forfeited that

right by evincing an intent to forego his . . . parental . . .

rights and obligations" within the meaning of Domestic Relations

Law § 111 (2) (a) (Matter of Andrew Peter H. T., 64 NY2d at 1091

[internal quotation marks and citation omitted]; accord Matter of

John Q. v Erica R., 104 AD3d 1097, 1098 [2013]; see Matter of

1 The record does not disclose when this term of

incarceration began.
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Asia ZZ. [Henry A.—Jason V.], 97 AD3d 865, 866 [2012]; Matter of

Dakiem M. [Demetrius O.—Dakiem N.], 94 AD3d at 1362).

Here, Family Court did not follow the two-step process set

forth above, instead proceeding directly to the second inquiry

under Domestic Relations Law § 111 (2) (a) and concluding that

the father forfeited his right to consent to the adoption by

abandoning his parental rights. While Family Court's finding in

that regard is amply supported by the record, particularly after

due deference is given to its credibility determinations

resolving the conflicting testimony in favor of the mother (see

Matter of John Q. v Erica R., 104 AD3d at 1099; Matter of Asia

ZZ. [Henry A.—Jason V.], 97 AD3d at 866), the court should have

first made a threshold finding as to whether the father

established his right to consent to the adoption through

satisfaction of the support and communication criteria set forth

in Domestic Relations Law § 111 (1) (d). Upon our independent

review of the record, we conclude that the father did not. 

The uncontroverted testimony adduced at the hearing

established that the father has never provided any financial

support for his son. Although the father was incarcerated for a

significant portion of the two-year period preceding the hearing,

he offered no proof that he had insufficient income or resources

to provide some measure of financial support either during that

time or when he was not in prison (see Matter of Bella FF.

[Margaret GG.–James HH.], 130 AD3d 1187, 1188 [2015]; Matter of

Maurice N. [Carlos O.], 128 AD3d 1117, 1118 [2015]; Matter of

John Q. v Erica R., 104 AD3d at 1099). Further, the absence of a

court order directing the father to pay child support does not

excuse his failure to provide any financial support (see Matter

of Bella FF. [Margaret GG.–James HH.], 130 AD3d at 1188; Matter

of John Q. v Erica R., 104 AD3d at 1099). As the father failed

to satisfy the support aspect of Domestic Relations Law § 111 (1)

(d),2 his consent to the adoption was not required under that

2 Because the support and communication provisions of

Domestic Relations Law § 111 (1) (d) must both be satisfied to

require consent to an adoption (see Matter of Bella FF. [Margaret

GG.–James HH.], 130 AD3d at 1187-1188; Matter of Asia ZZ. [Henry
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statutory provision.

McCarthy, Rose and Lynch, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

A.–Jason V.], 97 AD3d at 867 n), we need not address the

communication provision.