State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 31, 2016 520243 

________________________________

In the Matter of YSABEL M., an

Infant.

YSDIRABELLINNA L. et al.,

Respondents;

ELVIS M.,

Appellant,

et al.,

Respondent.

(Proceeding No. 1.) MEMORANDUM AND ORDER

_______________________________

In the Matter of ELVIS M.,

Appellant,

v

YSDIRABELLINNA L. et al.,

Respondents.

(Proceeding No. 2.)

________________________________

Calendar Date: February 9, 2016

Before: Peters, P.J., McCarthy, Egan Jr. and Lynch, JJ.

__________

Jane M. Bloom, Monticello, for appellant.

Ricciani & Jose, LLP, Monticello (E. Danielle Jose-Decker

of counsel), for respondents.

Isabelle Rawich, South Fallsburg, attorney for the child.

__________
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Egan Jr., J.

Appeal from an order of the Family Court of Sullivan County

(Meddaugh, J.), entered November 21, 2014, which, among other

things, granted petitioners' application, in proceeding No. 1

pursuant to Domestic Relations Law article 7, to determine that

the consent of respondent Elvis M. was not required for the

adoption of the child.

At all times relevant, Elvis M. (hereinafter the father)

and the child's mother were the unmarried parents of a daughter

(born in 2002). Ysdirabellinna L. (hereinafter the aunt) and

Richard L. (hereinafter the uncle) are the child's maternal aunt

and uncle. In April 2014, the aunt and uncle, who apparently

obtained custody of the child upon default in March 2005,

commenced proceeding No. 1 seeking to adopt the child and, in the

context thereof, alleged that the father's consent was not

required. The father, who has been incarcerated in state prison

since 2008, opposed the proposed adoption and thereafter

commenced proceeding No. 2 seeking visitation. Following a factfinding hearing and a Lincoln hearing, Family Court granted the

adoption petition finding, among other things, that the father's

consent was not required and that it was in the child's best

interests for the adoption to proceed. Family Court also

dismissed the father's petition seeking visitation. This appeal

by the father ensued.1

We affirm. As this Court recently summarized, "[a]

biological father's consent to adopt a child over six months old

who was born out of wedlock is required only if the father

maintained substantial and continuous contact with the child as

manifested by payment of reasonable child support and either

monthly visitation or regular communication with the child or

custodian. As the statute makes clear, Domestic Relations Law 

§ 111 (1) (d) imposes a dual requirement upon the biological

1 The father has not briefed the denial of his request for

visitation and, as such, we deem any argument in this regard to

be abandoned (see Matter of Owens v Chamorro, 114 AD3d 1037, 1038

n 1 [2014]).
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father – satisfaction of both the support and

contact/communication provisions – and the father's unexcused

failure to satisfy either of these requirements is sufficient to

warrant a finding that his consent to the proposed adoption is

not required" (Matter of Bella FF. [Margaret GG.–James HH.], 130

AD3d 1187, 1187-1188 [2015] [internal quotation marks, footnote

and citations omitted]).

As to the support element, we note at the outset that,

"absent a showing of insufficient income or resources, the fact

that [the father] was in prison does not relieve him from his

responsibility to provide some financial support to the extent of

his ability" (Matter of Dakiem M. [Demetrius O.–Dakiem N.], 94

AD3d 1362, 1363 [2012], lv denied 19 NY3d 807 [2012]; see Matter

of Hayden II. [Renee II.–Devan JJ.], 135 AD3d 997, 998-999

[2016]; Matter of Maurice N. [Carlos O.], 128 AD3d 1117, 1118

[2015]). In this regard, the father testified that he sent money

to the child for her birthday and "at various times" over the

years, including an occasion in 2014 when he sent the child –

through her mother – approximately $100. When questioned as to

the manner in which (given his incarceration) he transmitted such

funds, the father clarified that he "had [his] family send money

to [the child]." The father's vague and otherwise

unsubstantiated testimony on this point was flatly contradicted

by the aunt, who testified that she did not receive any financial

support from the father after the child came to live with her in

March 2005. Under these circumstances, Family Court properly

found that the father failed to satisfy the support element of

Domestic Relations Law § 111 (1) (d) (see Matter of Bella FF.

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

[Demetrius O.–Dakiem N.], 94 AD3d at 1363).

We reach a similar conclusion with regard to the contact

element of the statute. The father, by his own admission, had

not seen the child since 2007 (at which time the child was five

years old) and, even crediting his testimony on this point, had

only spoken with the child on the telephone once in or about July

2013. Although the father insisted that he periodically sent

cards and letters to the child's mother to, in turn, give to the

child, as well as gifts for the child's birthday and Christmas

each year, the aunt testified that she never received any cards,
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letters, emails, social network requests, packages or gifts for

the child from the father.2 The aunt similarly stated that the

father never contacted her requesting any information regarding

the child. While the father testified that he did not have an

address for the aunt and the uncle, the father admitted that he

had been to their residence in 2004, and the aunt testified that

she and her husband had lived at the same address for more than

20 years, that both her address and phone number were listed in

the local phone book and that she had made no attempt to keep

such information confidential. Although the father insisted that

he could not use the Internet – while incarcerated – to locate

the aunt and the uncle, he acknowledged that he had access to

phone books in prison and offered no persuasive explanation as to

why he did not ask a friend or family member to assist him in

obtaining the aunt and uncle's address (see Matter of Bella FF.

[Margaret GG.–James HH.], 130 AD3d at 1188-1189). More to the

point, the father acknowledged that the child's mother

"[i]nadvertently" provided him with the aunt and uncle's address

in November 2013 (when she shared a copy of the child's school

report card); still, the father made no effort to contact the

aunt, the uncle or the child until after the adoption petition

was filed.3

The case law makes clear that the father's "incarceration

[does] not excuse his failure to maintain substantial and

continuous or repeated contact with his child" (id. at 1189

[internal quotation marks, brackets and citations omitted]; see

Matter of Maurice N. [Carlos O.], 128 AD3d at 1118), and the

record reflects that the father's efforts in this regard were –

2 The father testified that he received correspondence from

the child – through the mother – on "[a] good five or six

occasions" over the years.

3 According to the father, he was concerned that there

might be an order of protection prohibiting him from such contact

(although he admittedly had no notice to that effect) and, in any

event, he apparently elected not to reach out to the aunt and the

uncle "[o]ut of respect for them."
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at best – insubstantial and sporadic. Accordingly, inasmuch as

the father failed to satisfy the criteria set forth in Domestic

Relations Law § 111 (1) (d), Family Court correctly concluded

that his consent to the proposed adoption was not required. 

Further, in light of our conclusion in this regard, we need not

consider the aunt and uncle's alternative ground for affirming

Family Court's order – namely, that the father abandoned his

child.

The father's ineffective assistance of counsel claim does

not warrant extended discussion. To the extent that the father

faults counsel for failing to tender sufficient proof of his

financial resources (or lack thereof), counsel "may well have

made a tactical decision not to dwell upon [the father's]

finances – particularly if [the father] had no viable explanation

for his failure to provide" support beyond the intermittent and

unspecified sums of money purportedly sent to the child by

members of his family (Matter of Bella FF. [Margaret GG.–James

HH.], 130 AD3d at 1189-1190). As for counsel's failure to call

the mother as a witness, it is well settled that "the failure to

call particular witnesses . . . does not necessarily constitute

ineffective assistance of counsel" (Matter of Julian P. [Colleen

Q.], 129 AD3d 1222, 1224 [2015] [internal quotation marks,

brackets and citation omitted]) – particularly where the record

fails to reflect that the desired testimony would have been

favorable (see Matter of James P., 17 AD3d 733, 735 [2005]). In

short, as our review of the record reveals that the father was

afforded meaningful representation, we are satisfied that he

received the effective assistance of counsel.

Peters, P.J., McCarthy and Lynch, JJ., concur.
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ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court