Matter of Sofyah

[*1] Matter of Sofyah 2006 NY Slip Op 51993(U) [13 Misc 3d 1226(A)] Decided on October 19, 2006 Sur Ct, Kings County Lopez-Torres, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through October 31, 2006; it will not be published in the printed Official Reports.

Decided on October 19, 2006
Sur Ct, Kings County

In the Matter of the Adoption of a Child whose First Name is Sofyah.



20021/06



Gail R. Rich, Esq. appeared for the natural father.

14 Billings Place, Brooklyn, New York 11223.

The petitioner, André S., represented himself.

Margarita Lopez-Torres, J.

The natural father, Armani R. ("Armani") moves for an order dismissing this adoption proceeding for failure to state a cause of action pursuant to CPLR 3211[a][5] and as barred by principles of res judicata and collateral estoppel (CPLR 3211[a][7]); or, in the alternative, transferring this proceeding to Family Court, Kings County. Petitioner André S. ("André") cross-moves for summary judgment declaring that Armani's consent is not required and that the adoption petition should be granted.

INTRODUCTION

Sofyah, the child in question, was born on May 7, 2003, to Bibi K. ("Bibi"). She was conceived while Bibi was married to, but separated from, André, whom she later divorced. Since Sofyah's birth, Armani has persistently and consistently attempted to assert his parental rights. Subsequent to Sofyah's birth, André and Bibi reconciled, although they have not re-married. Almost from their reconciliation, André and Bibi have opposed Armani's efforts to establish paternity and visitation rights. The dispute has resulted in Supreme Court actions and Family Court proceedings which established Armani's paternity of Sofyah and visitation rights, and now the instant proceeding in this Court wherein André seeks to terminate Armani's parental rights by adopting Sofyah. The facts necessary to decide the motion and cross-motion are established by the Court file and by prior court orders in those other proceedings, of which this Court takes judicial notice.

BACKGROUND

André and Bibi were married on February 22, 1989. They had one child, Donauld. After thirteen years of marriage they separated on June 6, 2002, and on June 10 a separation agreement was filed in Supreme Court. While Bibi was separated from André, beginning in June 2002, she was involved in a sexual relationship with Armani which lasted at least until November, 2002. In August, 2002, Bibi and André attempted to reconcile and they resumed a sexual relationship. Bibi became pregnant in August, 2002. Bibi's first reconciliation with André ended in September, 2002.

By an amended complaint, dated September 26, 2002, Bibi sought a divorce from André on the ground of cruel and inhuman treatment. Along with the amended complaint, Bibi filed an amended separation agreement. André filed an answer admitting Bibi's allegations of cruel and inhuman treatment and consented to the divorce. On October 22, 2002, the divorce was granted on the grounds of cruel and inhuman treatment. The divorce judgment incorporated the terms of the amended separation agreement. Although Bibi had informed André (and Armani) of her pregnancy before the divorce decree was entered, neither the judgment nor the amended separation agreement made any mention of Bibi's pregnancy although both the judgment and [*2]amended agreement provided for joint custody of Donauld.

After the birth of Sofyah, both André and Armani visited Bibi and the baby in the hospital. While in the hospital, Bibi applied for benefits under the Woman, Infants and Children ("WIC") program, listing Armani as Sofyah's other parent on her application. Armani claims that André refused to be listed on Sofyah's birth certificate unless there was proof that he was the father.[FN1] To establish the paternity of the child, Armani, Bibi and Sofyah (but not André) submitted to a genetic marker test on May 9, 2003, two days after the birth of the child. This test established with 99.99% certainty Armani's paternity of Sofyah.

Armani's Proceeding for Custody and Visitation

For the first year of Sofyah's life, Armani enjoyed regular and consistent contact with his daughter, visiting the child at least twice weekly in the period from May 7, 2003, to June 24, 2003, for 8 to 12 hours at a time. After an altercation with Bibi, Armani filed a petition in Family Court on June 24, 2003, for custody and visitation of Sofyah, alleging that Bibi was refusing to allow him to see Sofyah. Two days later, on June 26, 2003, Bibi filed a family offense petition against Armani and obtained a temporary order of protection. In that petition, Bibi swore that she and Armani had a child in common (i.e., Sofyah).

On July 15, 2003, Bibi consented to the entry of a temporary order of visitation granting Armani visitation with Sofyah on alternate weekends between 6:30 p.m. Friday and 6:30 p.m. Sunday. The temporary visitation, with some minor modifications, continued until the Family Court, by decision dated February 19, 2004, dismissed Armani's custody and visitation petition without prejudice, pending a judicial determination of paternity.

Armani's Paternity Proceeding

On February 2, 2004, Armani filed a petition in Family Court for a declaration of his paternity of Sofyah. On or about March 1, 2004, André and Bibi reconciled and began living together, along with Sofyah and Donauld. [*3]

On June 15, 2004, André, who is a lawyer, appeared in the paternity proceeding. Acting as Bibi's attorney, André moved to dismiss Armani's petition. Acting on his own behalf, André moved to intervene in the paternity proceeding. In his motion, André alleged paternity of Sofyah, based upon the presumption of legitimacy of a child born to a married woman and the doctrine of equitable estoppel of paternity. Armani subpoenaed Bibi's hospital records, her application for WIC aid and the records of the genetic marking test done in the hospital.

On November 29, 2004, Family Court denied Bibi's motion to dismiss the petition but granted André's motion to intervene. André then moved to quash Armani's subpoenas. On September 14, 2005, Armani filed papers in opposition to André's motion and cross-moved to dismiss André's claims of paternity and requested that, if the court deemed it necessary, it should order a second genetic marker test. A hearing on the motion and cross-motion was scheduled for September 23, 2005.

André's Motion in Supreme Court

André apparently realized that his prospects looked increasingly dim in Family Court, particularly as his reliance upon the presumption of legitimacy of a child born of a married woman and the doctrine of equitable estoppel faced a major hurdle: at the time of Sofyah's birth Bibi had already divorced him on the basis of cruel and inhuman treatment — a finding to which he had, in fact, admitted and consented to. Undaunted in his quest to defeat Armani's rights, he chose to go to a second forum in an attempt to revise history in a most novel manner. On September 21, 2005, André brought a motion in Supreme Court wherein he sought, inter alia, a) vacatur, ab initio, of the divorce judgment, b) dismissal of Bibi's complaint, and c) restoration of the divorce action to permit him to amend his answer, nunc pro tunc, to add a counterclaim — and to grant him summary judgment — for divorce pursuant to a separation agreement (DRL § 170[6]). In his papers, André claimed that after learning that Bibi was pregnant he withdrew (with Bibi's acquiescence) his consent to the divorce on October 19, 2002, but that Bibi had failed to inform the court of his withdrawal before the judgment was signed three days later. André further challenged the divorce judgment on the grounds of newly discovered evidence, as well as by asserting a failure to serve him with notice of entry. Relying on this attempted feat of legerdemain to reinstate his marriage to Bibi as of the time of Sofyah's birth, coupled with his invocation of the presumption of legitimacy of a child born while the mother was thus still — albeit retroactively — married, André then asked the Supreme Court for a finding that he was Sofyah's father and that Armani was thereby estopped from claiming paternity.

André asserted that since Sofyah's birth he had established an active family relationship with Bibi and Sofyah, that he had cared for and financially supported Sofyah, and that Bibi encouraged Sofyah to develop a parent-child relationship with him. He asked the Supreme Court to grant him full custody and support of not only Donauld but of Sofyah as well. He requested, and was granted, a temporary restraining order staying Armani's paternity and visitation proceedings in the Family Court.

Armani subsequently cross-moved for permission to intervene in the Supreme Court action. He asked that the requested relief be denied and that the stay of the Family Court proceedings be vacated. Bibi submitted an affidavit in support of André's motion, alleging that André was Sofyah's father (despite her previous sworn representation to the contrary in the family offense petition). On November 28, 2005, the Supreme Court (Sunshine, J.) vacated the stay of the Family Court proceeding. [*4]

On January 9, 2006, Justice Sunshine denied André's motion in its entirety, ruling that there was no basis for the relief requested. Justice Sunshine determined that at the time the divorce papers were filed on September 26, 2002, André and Bibi had lived separate and apart pursuant to a separation agreement for just three months and hence a judgment for divorce dated October 22, 2002, could not be premised upon DRL § 170[6], which requires a separation period of one year. Additionally, the court found that a divorce judgment cannot provide for a child not yet born. Justice Sunshine further found that there was no evidence of fraud by Bibi as alleged by André in the underlying divorce action.[FN2] With respect to André's claim that he had withdrawn his consent to the divorce, Justice Sunshine noted that André had never done anything to inform the court of his intention and, in fact, had waited for over three years before moving to vacate the divorce decree:

The court finds that the delay of almost three years in seeking to establish fraud is unreasonable under the circumstances of this case, particularly since Armani has been seeking to establish the right to custody and/or visitation since June 24, 2003 and paternity since February 4, 2004 in the Family Court proceedings that he commenced and André has intervened therein.

Bibi S. v André S., Sup Ct, Kings County, January 9, 2006, Sunshine, J., Index No. 22898/02 at 11.

Justice Sunshine ruled that the presumption of legitimacy was both unavailable to André and in any event had been rebutted by Armani, so that André could not maintain that he was entitled as a matter of law to be presumed Sofyah's father. The court then dismissed André's claim of paternity based upon estoppel of paternity, in a finding that has direct relevance to the instant proceeding:

[André] has failed to allege any conduct on the part of either [Bibi] or Armani that he could have relied upon in concluding that he was Sofyah's father. In fact, Armani's commencement of the custody/visitation and paternity proceedings compels the contrary conclusion, i.e., that Armani intends to exercise his rights as Sofyah's father. . . . Finally, inasmuch as Armani commenced the custody/visitation proceeding approximately one month after Sofyah was born and the paternity proceedings approximately one year later, the court finds that he acted promptly, particularly since he is seeking an order of filiation in an effort to be part of his daughter's life, and not as an attempt to avoid his parental obligations.

Bibi S. v André S., at 15 [citation omitted, emphasis added].

Armani's Paternity Proceeding

Back in Family Court, on February 27, 2006, the court (O'Shea, J.), in an oral ruling, granted Armani's motion to dismiss André's presumption of paternity and equitable estoppel defenses. Judge O'Shea memorialized the basis for her ruling in a subsequent written decision and order on April 6, 2006, wherein she also ordered that André, Bibi, Armani, as well as Sofyah, submit to genetic marker tests. The results, once again, confirmed Armani's paternity of Sofyah. On June 19, 2006, Judge O'Shea entered an order of filiation finding that Armani was the father of Sofyah. [*5]

In her April 6, 2006, decision, Judge O'Shea ruled that Family Court was bound by the doctrine of collateral estoppel to accept the findings of the Supreme Court. The court went on to say that independently it concurred with the Supreme Court's conclusion. Judge O'Shea determined that the presumption of legitimacy defense stands as a bar to a paternity proceeding only under circumstances involving a "child born to a married woman." Since André and Bibi were divorced before her birth, Sofyah was not a child

"born to a married woman" within the meaning of Family Court §418. [André's] lack of success in reopening the divorce proceeding in order to make Sophia into a "child born of a married woman" simply confirms this conclusion.

Armani R. v Bibi S-M, Fam. Ct., Kings County, June 19, 2006. O'Shea, J., index No. P-04122/04, at 8. Moreover, Judge O'Shea noted that the presumption of legitimacy can be rebutted by competent evidence by the putative father, and then ruled that the facts presented compelled a finding that André "is not Sophia's father and could never have seriously considered himself to be her father." Id. at 8. The Family Court dismissed André's claim to paternity and his motion to intervene in the proceeding, which at that point solely concerned Armani's right to visitation. Of particular relevance to the instant proceeding, the court found that Armani demonstrated a continuous and timely intention to exert his parental rights, despite obstacles put in his path by Bibi and André. The Family Court then granted Armani visitation with Sofyah.

André's Adoption Proceeding

Undaunted by his failure in Supreme Court to stymy the Family Court proceedings, before Family Court rendered its ultimate decision André turned to a third forum, the Surrogate's Court, to void Armani's right to visitation and all his paternity rights by bringing the instant adoption proceeding on May 5, 2006. In his adoption petition, André alleged that Sofyah had resided with him for over six months and that he has supported her financially since birth. Bibi filed a consent to the adoption, but not to the termination of her rights as parent. The petition listed Armani as the natural father, but alleged that Armani's consent was not required because Sofyah was born out of wedlock, and Armani had not maintained "substantial and continuous or repeated contact" with the child as required by DRL § 111[1][d].

Armani was given notice of the proceeding and filed objections to André's adoption petition. In his objections, Armani raised the affirmative defenses that the petition fails to state a cause of action and is barred by collateral estoppel or res judicata. Armani has now moved to dismiss the petition pursuant to CPLR 3211[a][5] and [a][7] or, in the alternative, to remove and transfer the proceeding to the Family Court. André opposed Armani's motion to dismiss and has cross-moved to dismiss Armani's objections and for summary judgment approving the adoption. Armani filed affidavits in opposition to the cross-motion and support of the motion. Bibi filed an affidavit in support of André's cross-motion and in opposition to Armani's motion.

DISCUSSION

Despite the parties' characterizations of the various motions before the Court, in essence the parties are asking for summary judgment in favor of their respective positions. While Armani moved to dismiss the adoption petition pursuant to CPLR 3211[a][7] for failure to state a [*6]cause of action,[FN3] his basic premise is that he is a "consent" father, that is, that his consent is required for this adoption under DRL § 111.[FN4] That statute, in pertinent part, provides:

1. Subject to the limitations hereinafter set forth consent to adoption shall be required as follows:

**** .(d) Of the father, whether adult or infant, of a child born out-of-wedlock and placed with the adoptive parents more than six months after birth, but only if such father shall have 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 of a fair and reasonable sum, according to the father's means, and either (ii) the father's visiting the child at least monthly when physically and financially able to do so and not prevented from doing so by the person or authorized agency having lawful custody of the child, 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 by the person or authorized agency having lawful custody of the child.

Conversely, André's cross-motion for summary judgment seeks a determination that Armani is merely a "notice" father (i.e., that Armani is only entitled to notice of the petition, but his consent is not required) and that the best interests of the child dictates granting the adoption [*7]petition. As both parties have fully submitted their evidence on both of these questions,[FN5] the Court will treat Armani's motion to dismiss as one for summary judgment as well, pursuant to CPLR 3212[b] (See Elsky v Hearst Corp., 232 AD2d 310 [1st Dept 1996]; Bank of NY v Ulster Heights Properties, Inc., 114 AD2d 431 [2d Dept 1985]).

The Court, thus, will proceed first to determine whether Armani is a "consent" father, that is, whether his consent is required to this adoption under DRL § 111; if so, then the petition must be dismissed as a matter of law. Only if this Court concludes that Armani is merely a "notice" father must the Court then determine the second issue, that is, whether the proposed adoption is in the best interest of Sofyah.

The Consent of Natural Father to Adoption

The threshold question is whether the natural father has manifested that he is willing and able to assume parental responsibility for the child by paying support and maintaining contact with his child so as to require his consent to adoption. The adopting party bears the initial burden of showing that the natural father's consent is not required, but the natural father has the ultimate burden of persuasion to show that he has not forfeited his right to refuse. (Matter of Dominique P., 24 AD3d 335 [1st Dept.2005]).

André states that Armani has not provided Sofyah with financial support, that he has not paid "one dime" of support (Reply of Andre S. to Objections). Furthermore, he states that Armani has not visited with Sofyah nor maintained contact with either André or Bibi since 2002, and thus, asserts that Armani's consent is not required (DRL § 111[1][d]). Armani counters that he has tried to support and maintain a substantial relationship with his child, but has been obstructed by André and Bibi. He argues that he has done all he could to assert his rights as Sofyah's natural father.

André argues that DRL § 111[1][d] expressly provides that the test is one of conduct, i.e., support and contacts with the child, or the custodian of the child. André asserts that Armani has not visited nor communicated with the child, as required by the statute and therefore his consent is not required. Armani responds that he has attempted to comply with the requirements of the statute, but has been frustrated by André and Bibi's opposition. André replies that this is irrelevant, asserting that New York's adoption statute, being in derogation of common law, must be strictly construed. According to this argument, Armani's timely and consistent conduct in establishing paternity and visitation is insufficient unless supported by the visitation or contacts specified by DRL § 111[1][d].

The Court declines to adopt André's draconian and irrational interpretation of DRL § 111. Moreover, while it is true that adoption was not recognized under common law (Matter of Anonymous, 40 NY2d 96 [1979]), and is strictly construed, a natural father's right to assert paternal rights has been held to be a fundamental right protected by the Due Process and Equal Protection Clauses of the Constitution.

This fundamental right of a natural father was first enunciated in Stanley v Illinois (405 US 645 [1972]). In Stanley, the natural father had lived with the mother and their children for [*8]eighteen years. When the mother died, the State assumed custody over the children without a hearing or a finding of the father's unfitness, pursuant to the Illinois statute which presumed an unwed father to be an unfit parent. The Supreme Court found that the right of a natural father to the care, custody and management of his children to be a fundamental liberty interest (id. at 651), and the fact that the father was unwed did not diminish this interest. This interest "warrants deference and, absent a powerful countervailing interest, protection" (id.). The Court held that a natural father who had established a paternal relationship with his children was entitled to the same protection against State interference as other custodial parents (id at 651-652).

The Supreme Court has consistently recognized the right of an unwed father to assert parental rights since Stanley (see, e.g., Quilloin v Walcott, 434 US 246 [1978]; Caban v Mohammed, 441 U.S. 380 [1979]; Lehr v Robinson, 463 US 248 [1983]).[FN6] In Lehr, the Supreme Court characterized the liberty interests of natural fathers as "the rights of the parents [as] a counterpart of the responsibilities they have assumed" (id. at 257). This interest

offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development.

(id. at 262). The liberty interest of the natural father has been recognized by our Court of Appeals in interpreting the protection afforded by the U. S. Constitution:

The filial bond is one of the strongest, yet most delicate, and most inviolable of all relationships, and in dealing with it we must realize that a child is not a mere creature of the State for distribution by it. This is not a new problem. It is fraught with emotion, impossible to compromise and one in which the stakes are high. There has always been abiding respect for the rights of natural parents.... A termination of parental rights is a drastic event indeed, so much so that it raises questions of constitutional dimension.

Corey L. v Martin L., 45 NY2d 383, 392 [1978][citations omitted] (see also Matter of Robert O. v Russel K., 80 NY2d 254 [1992]; Matter of Raquel Marie, 76 NY2d 387 [1990], cert. den. 498 US 984; Matter of Andrew Peter H.T., 64 NY2d 1090 [1985]). The protection accorded the natural father is greatest when the adopting parents are biological strangers to the child (see Quilloin v Walcott).

Originally, DRL § 111 required only the consent of the child's mother, but not the unwed father, to an adoption (see Doe v Roe, 37 AD2d 433 [2d Dept 1971]). However, in Caban, the U.S. Supreme Court declared DRL § 111 unconstitutional. In Caban, the natural father had lived with the mother for several years and they had held themselves out as married. The natural father continued to support the child after the couple broke up and the mother married. The natural father continued to visit his child regularly. Ultimately, the mother and her husband filed [*9]a proceeding to adopt the child and the natural father filed a cross-petition to adopt the child. The Surrogate's Court had granted the

petition of the mother and her husband and denied the father's petition, on the ground that the consent of the mother was required by DRL § 111 but the consent of the natural father was not.

Caban recognized the liberty interest that a natural father had in the parenting of his child, and held that New York's requirement for only the natural mother's — but not the natural father's — consent in an adoption proceeding violated the Equal Protection Clause of the U. S. Constitution, at least where the natural father had maintained a substantial relationship with the child and admitted paternity. Caban at 394.

In response to Caban, the legislature amended DRL § 111 to require the consent of natural fathers to the adoption of out-of-wedlock children where substantial contacts and support were established (L 1980, ch 575, § 1). Once the natural father establishes his right of consent to the adoption, the court must determine whether he has forfeited this right by showing a failure to visit and communicate with the child, or person having legal custody of a child, for a period of six months, although able to do so (DRL § 111[2][a]; Matter of Andrew Peter H.T.).

In amending DRL § 111 (by adding paragraphs (d) and (e) to subdivision (1)), the legislature's intent was to protect fathers who had "manifested a significant parental interest with the child" and at the same time provide "a reasonable, unambiguous and objective standard to guide agencies and courts" (Sponsor's Memo,1980 NY Legis Ann, at 242-243). Originally, it was proposed that DRL § 111 be amended to require the natural father's consent when he had made reasonable efforts to assert his parental responsibilities (Recommendation of the Law Review Comm, 1980 McKinney's Sess. Laws, 1672 at 1673-74). This was rejected and the legislature adopted the present language to give more certainty for "determining whether the unwed father's manifestation of interest in his child is sufficiently prompt and substantial to require constitutional protection." (Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, DRL § 111, C111:2, at 49).

In construing DRL § 111, a court should be guided by the legislature's intention, as long as it is constitutionally permitted. Furthermore, when more than one interpretation is possible, the court should adopt that which is constitutional. In Raquel Marie, the Court of Appeals declared that in order to pass constitutional muster in applying DRL § 111, a court must look to the totality of the natural father's conduct.

In determining when the natural father has acted to preserve his rights (and obligations) as father of the child, the courts look to a number of factors in determining whether the natural father made timely efforts to satisfy parental responsibilities of visitation and financial support of the child. Among the factors enunciated by the Court of Appeals in Raquel Marie are the substantiality of contacts, frequency of visitation and whether the father came forward to immediately assume his parental responsibilities. If the natural father meets these tests, parental rights will be respected. In essence, the Court of Appeals has held that the trial court's inquiry

may include such considerations as his public acknowledgment of paternity, payment of pregnancy and birth expenses, steps taken to establish legal responsibility for the child, and other facts evincing a commitment to the child.

Id., at 408.

Among the factors considered by the courts in determining whether the father has made a [*10]sufficient attempt to recognize his parental responsibilities is promptness (see Stanley v Illinois; Quilloin v Walcott; Caban v Mohammed; Lehr v Robinson). The timely demonstration of the father's personal and financial commitment is necessary to preserve the father's right to consent (Matter of Raquel Marie; Matter of John E. v Doe, 164 AD2d 375 [2nd Dept 1997], lv den 78 NY2d 853 [1991]; Matter of James Q., 240 AD2d 841 [3d Dept 1997]). The right of the natural father attaches when he manifests a willingness to be a custodial parent (Robert O., supra at 262; see also Matter of Baby Girl U., 224 AD2d 869 [3rd Dept 1996]).

The failure of the father to promptly attempt to establish his rights and responsibilities is both evidence of a lack of intent to establish parental relationship and is also evidence that his intent is merely one to block the adoption (Matter of Raymond AA., 217 AD2d 757 [3d Dept 1995]; Matter of Stephen C., 170 AD2d 1035 [4th Dept 1991]); Matter of John E. v Doe, supra; Robert S. v Orange DSS., 188 Misc 2d 35 [Family Ct, Orange County 2001]; Matter of Ursula J., 169 Misc 2d 148 [Family Ct, Ulster County 1996]; Matter of Stephany G., NYLJ, July 2, 1999 at 33, col 5 [Family Ct, Kings County]).

Another factor is the father's willingness to acknowledge paternity (see Matter of Kiran Chandini S., 166 AD2d 599 [2d Dept 1990]). Thus, it has been held that the right of the natural father attaches when he manifests a willingness to be a custodial parent (Matter of Robert O., supra, at 264-266; see also Matter of Baby Girl U.). Therefore, the willingness of the natural father to assume full custody of the child has been considered in determining whether the natural father has a right to refuse consent to the adoption (Matter of Raquel Marie, supra at 408; see also Matter of Raymond AA.; Matter of Stephen C., 170 AD2d 1035 [4th Dept 1991]; Matter of John E.). This is what the Supreme Court in Lehr referred to in holding that the father must grasp the opportunity to assert parental rights and obligations (id., at 262).

The Court of Appeals has held that

in an adoption proceeding by strangers, an unwed father who has been physically unable to have a full custodial relationship with his newborn child is also entitled to the maximum protection of his relationship, so long as he promptly avails himself of all the possible mechanisms for forming a legal and emotional bond with his child.

Raquel Marie, supra at 402 [citations omitted]. In essence, the liberty interest of unwed parents depends upon clearly and timely accepting parental responsibilities. Included in this obligation is the obligation of support (Matter of Raymond AA.). "The unwed father's protected interest requires both a biological connection and full parental responsibility; he must both be a father and behave like one." (Raquel Marie, supra at 401). "The Supreme Court's definition of an unwed father's qualifying interest recognizes as well the importance to the child, the State and all concerned that, to be sufficient, the manifestation of parental responsibility must be prompt." (id at 408).

Applying these factors to the facts at hand, the Court finds that Armani has preserved his right of consent. The first element of parental obligation is financial support of one's child (Matter of Andrew Peter H.T.). DRL § 111[1][d][i] requires "the payment by the father toward the support of the child of a fair and reasonable sum, according to the father's means." André complains that Armani has not paid "a dime of child support," yet he fervently avows that he would not accept any aid from Armani if offered. In any event, Armani submitted proof that he has established a bank account for Sofyah. He states that a portion of his wages are [*11]automatically deposited into this account. The account remains available today for his daughter's support. Attached to his reply papers is a copy of a statement from the Municipal Credit Union confirming the existence of an account for Sofyah's benefit.

Moreover, the record also shows that Armani timely brought proceedings to establish custody and visitation of Sofyah in Family Court. The initiation of a paternity proceeding gives the Family Court exclusive jurisdiction to establish paternity and, in any proceeding in which paternity is found, to order support (Family Ct Act § 511). Indeed, it has been held that this is one of the primary purposes of establishing paternity (L. Pamela P. v Frank S., 59 NY2d 1 [1983]; Dept. of Social Services v Jay W., 105 AD2d 19 [2d Dept 1984]).

In Matter of Baby Girl S., 141 Misc 2d 905 [Surr. Ct. NY County 1988], aff'd without opn 150 AD2d 993 [1st Dept 1989], aff'd sub nom. Matter of Raquel Marie, 76 NY2d 387 [1990], cert. den., 498 US 984, the Surrogate held that by commencing paternity and custody proceedings, the natural father satisfied the requirement that he held himself out to be the father of the child and obligated himself to support the child. Although that case involved DRL § 111[1][e], which applies to adoption of a child less than six months, the support requirement of [e] is the same as [d] and there is no reason why that court's holding should not apply to a case under [1][d]. Based on the above, Armani has satisfied this requirement.

The next element of parental obligation is the maintaining of contact with the child, or the custodian of his child. André claims that Armani has not visited or contacted André, Bibi or Sofyah since 2002. Contrary to André's assertions, however, this is not a case where the natural father is a stranger to his child. The record establishes that Armani maintained regular visits with Sofyah until February, 2004, after his original custody/visitation petition was dismissed. Around that time, Bibi started to live with André, who, with Bibi's acquiescence, opposed Armani's efforts to establish his right to paternity and visitation. Since then, Armani has attempted to restore his visitation rights previously granted by the Family Court. Only now, three years after Sofyah's birth, has he been able to obtain an order of filiation and to re-establish his visitation rights. Armani argues that he has done all that he could to establish a relationship with Sofyah, given the relentless opposition of André and Bibi.

DRL § 111[1][d] provides that where the custodian prevents the father's regular communication with the child, regular contact with the person having lawful custody of the child is sufficient. In the instant case, Armani has done this. The record establishes that Armani has made numerous contacts with Bibi, even if these contacts were in the context of proceedings in Family, Supreme, and Surrogate's Court.

Even if these contacts are not sufficient under DRL § 111, the statute does not require the Court to terminate Armani's rights under the facts of this case. DRL § 111 merely provides that a father's subjective intent, unaccompanied by evidence of acts specified in the statute, "shall not preclude a determination that the father failed to maintain substantial and continuous or repeated contact with the child." DRL § 111, however, does not mandate such a result.

Relying on Matter of Julia P. (306 AD2d 937 [4th Dept 2003]) and Matter of Joshua II (296 AD2d 646 [3d Dept 2002]), André argues that Armani's failure to maintain substantial contact with Sofyah was the result of his own "deliberate acts or intentional crimes" (Reply Affidavit of André). Neither case is apposite.

In Matter of Julia P., the father had raped and then abandoned his adopted daughter, who [*12]became pregnant and gave birth. The father was convicted of sexual abuse and sentenced to prison. In related proceedings, orders of protection were issued prohibiting any contact between the father and his adopted daughter and their child. The adopted daughter married and, more than six months after the father's incarceration, the adopted daughter's husband brought a proceeding to adopt the child. The court refused to relieve the natural father of the requirement of maintaining minimum contacts with the child, stating that the failure to communicate with the mother or child was his own fault, which resulted in an order of protection prohibiting such contact. The facts in the instant case are clearly distinguishable and a world away from those in Matter of Julia P. Moreover, the court in that case noted that the father never contacted the county department of social services and this failure to contact the department was not prohibited by the protective order and thus not excused.

In Matter of Joshua II, the last contact the father had with his child was a supervised visit that took place more than one year prior to the filing of the adoption petition. The evidence showed that the natural father made no support payments during the six months prior to the proceeding and was, at the time of the hearing, $4,000 in arrears in child support obligations. The Family Court excused the lapses as caused by the father's incarceration prior to the filing of the adoption proceeding and the entry of court orders suspending visitation. The Appellate Division, Third Department, reversed, holding that the lapse in visitation and lack of support supported a finding of abandonment of parental rights. This was not excused by the incarceration or protective orders, since the protective orders were the result of the father's violations of previous court orders regulating visitation. Again, the facts in this case are substantially different from the facts in Matter of Joshua II.

André alleges that Armani's inability to visit Sofyah is a direct result of his criminal behavior. However, André has not provided the court with any proof of criminality, such as certificates of convictions. Armani has been the subject of orders of protection issued by the Family and Criminal Court. A temporary order of protection was issued by the Family Court pursuant to a family offense petition brought by Bibi . It was dismissed by the Family Court on February, 2004, when Armani's original proceeding for custody and visitation was also dismissed. As can be gleaned from a Criminal Court order of protection, a criminal complaint, in which Bibi was the complainant, resulted in a one year adjournment in contemplation of dismissal. That order of protection, which expired on September 11, 2006, required Armani to stay away from Bibi (but not Sofyah) and was subject to Family Court orders of visitation and custody.

It has been held that the entry of an order of protection does not excuse the father's failure to maintain contacts with his child (Matter of Dominique P., 24 AD3d 335 [1st Dept 2005]). However, the court in Dominique P. noted that the petitioner in that case had never sought to modify the orders to permit visitation and failed to contribute to his children's support. In the instant case, neither the temporary order of protection issued by the Family Court, nor the order of protection issued by the Criminal Court, barred Armani from obtaining visitation with Sofyah. Armani proceeded promptly in Family Court to establish his right to custody and visitation. Armani has consistently sought visitation and abided with the Family Court's orders providing for visitation. There have been regular "contacts" with the child's custodian, namely three court proceedings, which eventually resulted in a visitation order. Moreover, as noted above, there is evidence of Armani setting money aside for his child. Therefore, the Court declines to find that [*13]Armani has lost his right to consent based upon the order of protection (Matter of Joshua II, supra, at 647 ["the biological father's failure to visit with or financially support his children, although significant, are not determinative where they are properly explained'"] (id. [quoting Matter of Joshua, 216 AD2d 749, 751 [3d Dept 1995], lv denied 86 NY2d 709 [1995]).

André argues that the Court should ignore his actions in vigorously contesting Armani's efforts to obtain parental rights, noting that DRL § 111[d][1] provides that "the court shall not require a showing of diligent efforts by any person or agency to encourage the father to perform the acts specified in this paragraph." André argues that his opposition to Armani's attempts to establish paternity and visitation, therefore, do not excuse Armani's failure to maintain substantial contacts with his child, as required by the statute. André thus claims that since DRL § 111 does not oblige the custodian to help the natural father, the statute shields his efforts to oppose the natural father's efforts.

To be sure, the plain language of DRL § 111 protects the adoption process by making it clear that it is the natural father's obligation to promote the parental relationship with his child and this duty cannot be shifted to the custodian or adopting party. This shield, however, cannot be used as a sword by the proposed adopting party to actively prevent the natural father from performing the acts required under the statute and then claim that the natural father should lose his parental rights. This distinction between passive and active conduct is exemplified by Robert O. and Baby Girl S.

In Robert O., the mother did not tell the natural father that she was pregnant. She obtained the agreement of a couple who she knew to adopt the child. A few days after the birth, the mother signed a judicial consent to the adoption. The mother was never asked to identify the father and signed a statement that there was no one entitled to notice or whose consent was required. The adoption was then approved by the court. Subsequently, the mother and natural father reconciled. When the natural father learned of the adoption, he petitioned the court to vacate the adoption decree. His petition was granted by the Family Court and affirmed by the Appellate Division. The Court of Appeals reversed, holding that the mother had done nothing to conceal her condition and that neither the mother nor the adopting couple (who did not know the identity of the natural father) had an obligation to seek out and inform the natural father of the adoption proceeding. The Court held that the natural father could have learned of the pregnancy, since the mother lived in the same house, and that his failure to receive notice of the adoption proceeding did not invalidate the decree of adoption.

On the other hand, the active refusal of the mother and adopting parents to notification of the father was held to constitute fraud and misrepresentation requiring the dismissal of the adoption proceeding in Baby Girl S., finding that the test was whether,

the unwed father has demonstrated his desire for a caring and ongoing relationship with his child. . . The constitutional right of the unwed father who has demonstrated responsibility for his child cannot be made to depend upon a condition outside his control. The statute was not intended to exclude from the class of unwed fathers whose consent to the adoption of their children is required, a father who was able and willing to comply with a statutory condition but was prevented from doing so by an unwilling mother. . . Any other interpretation of the statute would require this court to hold the statute unconstitutional under Caban's standards.

Baby Girl S., supra, at 916-917. In affirming this holding of the Surrogate, the Court of Appeals [*14]found that the unwed father's "persistent and uniformly rebuffed expressions of concern, offers of support and requests for custody, as well as his legal efforts to establish paternity and secure custody" established that he was a concerned father who did all that he could have done under the circumstances (Raquel Marie, supra at 409).

In the instant case, André is a biological stranger to Sofyah. He has not married the child's mother but has established a family relationship with her and the child. André (with Bibi's concurrence) has sought to deny Armani's attempts to obtain custody and visitation at every turn. André claimed paternity in the Family Court and sought to quash the subpoenas that would support Armani's claims. André moved in Supreme Court to modify the divorce decree to modify the grounds for divorce and establish paternity and custody of the child, which was denied. After the second genetic marker tests were ordered, André, an attorney, must have realized that his ability to delay or frustrate Armani's proceeding in Family Court were coming to an end. André then tried to negate the proceedings in Family Court by bringing the instant adoption proceeding, which would terminate Armani's parental right, making Armani's three year effort to maintain a relationship with his child in Family Court moot.

André could have brought the adoption proceeding in Family Court, where the paternity and visitation proceeding was pending. When this court questioned him as to why he chose to bring the proceeding in this Court, it became apparent that André was displeased by the unfavorable results in Family Court and that both he and Bibi believe it to be a "prejudicial forum." (Bibi Reply). This attempt to make an end run around the Family Court proceedings should not be tolerated (Baby Girl S.).

The record establishes that Armani has openly acknowledged paternity since the child's birth. Armani obtained genetic marker testing within days of the child's birth which established his paternity.[FN7] Armani visited Bibi and Sofyah. Armani brought a proceeding in Family Court to establish his right to custody and visitation approximately a month after Sofyah's birth. Armani exercised his right to visitation when allowed by the courts and diligently pursued his remedies. Armani obtained an order of paternity and sought visitation of his child, which Family Court has determined to be in the child's best interests. Armani opened an account for his daughter despite the efforts of André and Bibi to deny visitation. In sum, Armani has maintained his intention to assert his rights in the face of André's (and Bibi's) unflagging opposition.

In this regard, Family Court has made findings that are directly relevant to this proceeding. Family Court found that Armani immediately acknowledged paternity and brought a proceeding for visitation and custody. The Family Court found that

Armani exercised his visitation rights with [Sofyah] for as long as [Bibi] and the court permitted. [*15]Armani's actions, far from evidencing a lack of interest in asserting his parental rights, demonstrated that he fully intended to assert those rights despite the obstacles that were put in his path, largely by [Bibi] and [André].

Armani R. v Bibi S-M., at 7.

Based on the above, the Court finds that Armani has sought full parental responsibility virtually from the time his child was born and that he has done "everything possible to manifest and establish his parental responsibility" (Raquel Marie, supra at 409). Therefore, his consent is required. Armani's intent to forego his parental rights and obligations must be established by clear and convincing evidence (Matter of Amy SS., 64 NY2d 788 [1985]; Matter of Joshua). The record shows that Armani did not abandon his right to consent to the adoption (see Matter of Andrew Peter H.T.; Matter of Corey L., 45 NY2d 383 [1978] (insubstantial visitation does not constitute abandonment); Matter of Madeline S., 3 AD3d 13 [1st Dept 2003](lack of substantial contacts did not constitute abandonment given mother's opposition)). Since his consent is lacking, Armani is entitled, as a matter of law, to summary judgment dismissing the adoption proceeding.

Best Interests of the Child

Even if this Court were to reach the issue of the best interests of Sofyah, André would still need to prove that adoption would be in the child's best interest. DRL §§ 114, 116. The Court, however, were it to find it necessary to reach this, would grant summary judgment to Armani on this issue because the evidence presented by both parties shows that it is not in Sofyah's best interest and, more importantly, the issue of best interest has already been determined by the Family Court.

André states that he has supported Sofyah since birth and that he has developed a parent-child relationship with her. He has annexed affidavits from psychologists that the adoption would be in the child's best interest. André claims that it would not be in Sofyah's best interest to recognize Armani and that, as a matter of law, it is in Sofyah's best interest to grant the adoption.

However, the record establishes that adoption would not be in Sofyah's best interest. The Family Court, which has had the opportunity to observe and evaluate the parties, has concluded that, based upon the evidence, "it is the Court's conclusion that it is in Sophia's best interest to know the identity of her biological father and that her father be permitted to pursue the rights, privileges and obligations of a father to his child."(Armani R. v Bibi S-M., at 10).

Indeed, the Family Court's prior determination — that to continue the relationship between Sofyah and her natural father is in her best interests — would collaterally estop this Court from holding otherwise.[FN8] The doctrine of collateral estoppel bars re-litigation of factual [*16]issues that have been adjudicated by a prior, valid, final judgment between the parties (9 Carmody Waite 2d § 63:445). Before the collateral estoppel can be found, it is necessary to show that the issue on which preclusion is sought is identical with the issue in the prior proceeding (Kret v Brookdale Hosp. Med. Ctr., 61 NY2d 861 [1984]), that the issue was necessarily determined in the prior proceeding and that the litigant who will be held precluded in the present proceeding had a full and fair opportunity to litigate the issue doctrine (Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640 [1993]; Gilberg v Barbieri, 53 NY2d 285 [1981]).

Family Court further found that, "to the extent [André] and [Bibi] have misled [Sofyah] into believing that [André] is her father, they not only deliberately subverted Armani's rights, they have not acted in the child's best interests."(Armani R. v Bibi S-M., supra, at 8).Finally, Family Court found that "it is in [Sofyah's] best interest to know the identity of her biological father and that her father be permitted to pursue the rights, privileges and obligations of a father to his child."(Id., at 10).André and Bibi were parties in that proceeding and had a full opportunity to litigate these issues. Accordingly, those determinations are binding upon the parties in this proceeding.

Moreover, even if André were not already estopped by the Family Court's prior determination, he would not be entitled to summary judgment that adoption would be in Sofyah's best interest. While André is quick to paint Armani as having exhibited violence toward Bibi, he fails to mention in his papers his own admission of cruel and inhuman treatment toward Bibi that resulted in their divorce. Although André has been living with Bibi and Sofyah since March, 2004, they have not re-married. Even after the decision by the Supreme Court on January 9, 2006, denying petitioner's claim of paternity based upon the presumption of legitimacy and equitable estoppel, André did not promptly move for adoption. It was only when it became clear that Family Court would recognize Armani's parental rights that André sought to adopt Sofyah. A fair inference is that he has sought adoption to block Armani's parental rights, a motive that is highly suspect in adoption proceedings (see Baby Girl S).

One parent does not have the right to obliterate the rights of the other. It is best that the Surrogate Court not be used here by a mother who, with her former husband, is determined to deprive the father of a relationship with his child. The Family Court is uniquely in a position to determine what role Armani is to play in the life of his child, and no doubt will consider the nature, extent and frequency of visitation that Armani will have.

Based on all of the above, André's cross-motion for summary judgment must be denied and his petition to adopt Sofyah is dismissed.

This constitutes the decision and order of the Court. [*17]

________________________________

HON. MARGARITA LOPEZ-TORRES

S u r r o g a t e

Dated: October 19, 2006 Footnotes

Footnote 1:The original birth certificate was not produced. A copy of the child's social security card, however, was annexed to Armani's reply papers. The social security card which was issued lists only Bibi's surname and lists her given name as Sophia. The original birth certificate listed Bibi's surname (and the given name as Sophia, not Sofyah) and did not name André as the father. (Affidavit of Bibi K. in Opposition to the Motion and Support of the Cross-Motion ["Bibi Reply"])

On January 28, 2004, the child's birth certificate was amended to list André as her father.

Continued...

Neither Bibi nor André have provided an explanation how they were able to amend the birth certificate to reflect André as the father (and presumably André's surname). To obtain a new birth certificate, there must either be a subsequent marriage of the unwed parents, an adjudication of paternity, an adoption, a judgment or order or decree relating to the change of name or the consent of the putative father, done by execution of an acknowledgment of paternity by the putative father and mother (Public Health Law § 4138). To amend a birth certificate, there must be evidence that an error was made at the time of filing (Matter of Anonymous v Weiner, 50 Misc 2d 380 [Sup Ct, NY County 1966]). None of these preconditions appears to have occurred.

Footnote 2:André had alleged that Bibi had committed fraud by failing to advise him that she was pregnant.

Footnote 3: Were the court to treat Armani's motion as strictly just a motion to dismiss for failure to state a cause of action, the court would be constrained to deny the motion.

The adoption petition alleged that Armani had not paid a reasonable sum toward Sofyah's support and that Armani had not maintained substantial or repeated contacts with Sofyah. The petition stated that Armani had not been adjudicated as the father of Sofyah and that neither André nor Bibi had prevented Armani from contacts with Sofyah, but rather, that the order of protection prevents Armani's contacts with Bibi.

André alleged that he is the only father Sofyah has known, that he had provided for Sofyah and that he and Bibi reside together and will raise the child together. The petition further stated that Armani has been convicted of harassment and assault against Bibi and been ordered to stay away from Bibi and the child since June 24, 2003. Based on the above, André asserted that adoption is in the best interest of Sofyah.

On a motion to dismiss for failure to state a cause of action, the allegations in the pleadings are deemed true and all inferences reasonably flowing from the allegations must be resolved in favor of the party asserting the cause of action (Residence on Madison Condominium v W.T. Gallagher & Assoc., 271 AD2d 209 [1st Dept 2000]). Applying these standards, André had clearly stated a facial cause of action for adoption. Likewise, upon the same reasoning, André's cross-motion to dismiss Armani's objections would be denied.

Footnote 4:Armani also alleges that the notice of the adoption proceeding he received was improper, as it listed an address at which he was no longer residing. However, his answer does not raise this issue and he interposed a motion to dismiss the adoption proceeding on other grounds. Accordingly, any objection as to the manner of service is waived (Matter of Dell, 56 Misc 2d 1017 [Family Ct, Monroe County 1968]).

Footnote 5: Although Bibi is not a party to the petition, and has not formally sought to intervene in this proceeding, she did appear at oral argument and submitted an affidavit in support of André's position.

Footnote 6:The only exception has been where the child was the result of an adulterous relationship with a woman who at the birth remained married, and cohabitating, with her husband (Michael H. v Gerald D., 491 US 110 [1989]), a situation not presented here.

Footnote 7:Bibi recognized Armani as the father of Sofyah, at least until her reconciliation with André. She listed him as the father in her application for governmental benefits, she allowed visitation even without court order and did not deny Armani was the father at the paternity hearing. She sent Armani a father's day card wishing him a "Happy Father's Day!" and stated that she hoped they could be friends. "Please know that I did and do love you as a friend." In this card she referred to their child as "our precious Sophia." (Exhibit "B" to Affirmation of Gail Rich, Esq., in Opposition to Cross-Motion)

Footnote 8:Although Armani also moved for dismissal under CPLR 3211[a][5] on the basis of res judicata and collateral estoppel, as indicated earlier, this Court is treating all the pending motions as ones for summary judgment. Were the Court to rely solely on 3211[a][5], res judicata would not be available, as the particular claim was not disposed of by the previous proceeding. Gramatan Home Investors Corp. v Lopez, 46 NY2d 481 [1979].

Armani claims that the Supreme Court has already found that André has no claim for paternity based upon estoppel and the presumption of legitimacy. André does not deny this, but claims that dismissal of these claims has no bearing in this adoption proceeding, where the only issue is whether the natural father's consent is necessary. The Court agrees that the issues are different in an adoption proceeding, and therefore, a motion to dismiss on the ground that the adoption proceeding is barred by the doctrine of res judicata would not prevail.