Matter of Ian

[*1] Matter of Ian 2009 NY Slip Op 52028(U) [25 Misc 3d 1211(A)] Decided on September 18, 2009 Supreme Court, Oneida County Romano, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 18, 2009
Supreme Court, Oneida County

In the Matter of the Adoption of a Child Named Ian



X2008-17/A

Bernadette T. Romano, J.

Before the Court is an adoption petition filed by Leroy and Lynn Harney seeking the adoption of a child born on July 10, 2008 (hereinafter "Baby"). The biological mother of the child is DeShonne Garrett (hereinafter "Garrett"). An Order of Filiation was entered on March 2, 2009, adjudicating Christopher B. Brown (hereinafter "Brown") as the father of the Baby. Originally, this adoption case was before the Oneida County Surrogate's Court. However, this matter was transferred by an administrative order from Fifth District Administrative Justice James C. Tormey, III to the Integrated Domestic Violence Court on March 4, 2009. As part of the adoption proceedings, this Court held a trial on the issue of whether Brown is a notice or a consent father.

Testimony

The first witness to testify was Brian Curley. Mr. Curley is a supervisor in the public assistance division with the Oneida County Department of Social Services. He testified that public assistance benefits are predicated on the residence of the receiver of the benefits. He stated that between May 2007 and September 2008, Brown filled out forms in applying for public assistance and he indicated that his address was 314 Nichols Street, Utica, New York. Brown also indicated that he had a roommate at the Nichols Street address named Mike Hunter.

The next witness to testify was Nancy Gaston. She is a job developer with the Oneida County Workforce Development. She has known the Baby's biological parents, Garrett and Brown for several years. She testified that in April 2008, she had a conversation with Garrett. At that time Garrett advised her that she was pregnant, and that she did not want another child because she already had eight children, and stated "I can't do it again." Garrett told her that she [*2]was not prepared for this child and that she was stressed. Garrett told Gaston that she wished that she could find a family that would adopt the child right from the hospital. Gaston said that she knew of someone from work, Lynn Harney (hereinafter "Harney"), that might be interested in adoption. Gaston contacted Harney and inquired whether she would be interested in adopting an African-American baby, to which Harney said yes. Gaston then helped facilitate a meeting between Garrett and Harney.

The Baby was born on July 10, 2008. A few weeks after the birth, Gaston went to Garrett's residence. Gaston testified that she had a conversation with Garrett. Brown was there as well, but she is not sure if he heard the conversation or not because Gaston had at one point asked him to retrieve something out of her car for them. Gaston stated that she asked Garrett what Brown's reaction was to the Baby. Garrett told her that she tried to show him pictures but he just pushed them aside. Gaston said that she did not directly tell Brown during this time that Garrett had given up the Baby for adoption. Gaston also testified that she had a conversation in September with Brown. She said that Brown accused her of conspiring with Garrett "to get my baby adopted and you guys got paid." She testified that she told Brown that no money was involved in this situation. Rather, she told him Garrett did it because she was tired. Gaston testified that Brown said in response that one more child would not matter. Gaston testified that she did not receive any compensation for introducing Garrett to Harney.

The next witness to testify was Lynn Harney. She is the putative adoptive mother of the Baby. Harney testified that initially Nancy Gaston approached her at work, during employment hours, to discuss the possibility of adopting the Baby. Thereafter, she consulted with her attorney in the end of May 2008. At that time, Harney indicated that she was not aware that Brown was the Baby's father. Harney said that she initially met Garrett in June 2008 during her work hours. At that meeting, they talked for 5 to 10 minutes. Garrett advised her that Brown was the father of the Baby. Harney testified that she and Garrett had further conversations in June about the adoption. On June 17, 2008, Harney signed an adoption petition for the Baby.

Harney stated that the Baby was initially due on or about August 17th or 19th. She said that she received a call from Garrett at 10:00 pm on July 9, 2008 who indicated that the Baby was coming and that she should get down to the hospital. Garrett had consented to Harney being in the hospital delivery room with her. Harney went to the hospital, and an identification bracelet was put on her wrist. The Baby was born shortly after midnight on July 10, 2008. Harney said that she was allowed to hold the Baby after the birth. Following the birth, Harney had her attorney prepare guardianship papers.

On July 18, 2008, Garrett signed a judicial surrender of the Baby. Petitioner's Exhibit 10 indicates that Surrogate Court Judge David Murad signed an order also on July 18, 2008 transferring the Baby to Harney and allowing her to take the child home from the hospital. The Baby was in fact released to Harney on July 18, 2008.

Harney testified that Brown was not at the hospital for the Baby's birth, nor did he visit the Baby. She also admitted that she did not report to the hospital that Brown was the father of the Baby. Harney was never contacted by Brown and she never contacted Brown about the Baby. She testified that she never sought out Brown at all.

The next witness to testify was Garrett. Garrett is the biological mother of the Baby, who is at the center of this adoption controversy. The Baby was born on July 10, 2008. Garrett [*3]testified that at the time of birth, she was still legally married to a Randolph Jackson, although it appears that Mr. Jackson and Garrett have been estranged for many years. Garrett lives in Utica at 102 Wall Street with her eight children. The youngest five of these children were fathered by Brown, to wit: Shaleise (age 11), Aalyia (age 7), Demetrius (age 6), Curtis (age 3), and Sheila (age 2). These children have always lived with her at her address. Garrett testified that she has known Brown for 11 years. Brown is not on her lease but comes to the house to watch their children, and that he cares for them when she is not available. She said that the children all refer to him as Daddy. She declined to say that Brown was living with them, but rather maintained that he stayed with them, "when he was there." During her pregnancy, she stated that in April, May, June, and July 2008, Brown was spending most nights with her. She described him as spending a majority of nights with them in March 2008. She denied that he spent a majority of nights with her in January and February, 2008.

Garrett testified that she discovered that she was pregnant with the Baby at approximately the end of April 2008. She testified that she always knew that the father of the Baby was Brown. At that time, she had a conversation with Brown and she told him that she was "done" and that she was not ready for this child. She told Brown at that time that she was giving up the child for adoption. She testified that upon hearing this, Brown told her he did not want to talk about it. Garrett testified that she also confided her feelings about having the Baby to her friend Nancy Gaston. Ms. Gaston later contacted her with the name of Lynn Harney, who was a possible adoptive placement. Ms. Gaston facilitated the meeting between Garrett and Harney.

Garrett stated that she met one or two times with Harney in her office at the Department of Social Services in the Paul Building in Utica to discuss the adoption. She admitted that she never told Brown that she was going there to meet with Harney or that she was having discussions with her about adoption. Garrett testified that after meeting with Harney, she attempted once again to discuss adoption with Brown. She told Brown that she could not handle another child and that they were not financially stable for another child. She testified that Brown merely said in response that he did not want to talk about it. Garrett also stated that she told the other children, outside the presence of Brown, in a family meeting that she planned on giving up the Baby for adoption.

On July 9, 2008, Garrett went into labor. An ambulance was called, and she was transported to the hospital. Garrett testified that Brown was present at the home when the ambulance picked her up. Brown remained home to care for all of their children. She testified that she delivered the Baby in the hospital. Harney came to the hospital and was present during the delivery. Garrett has not seen the Baby since the delivery. Garrett admitted that she did not tell Brown that Harney would be present in the delivery room, nor did she fill out any paperwork to indicate that Brown was the father of the child. She stated that she did not indicate Brown's name on the birth certificate form. She said that she had always done so with all of their children because Brown had always said that the children are not his.

Garrett said that she stayed in the hospital for about a week after delivery. She acknowledged that Brown remained home with all the children during this time. She apparently needed X rays and transfusions following the birth. She testified that Brown did not come to the hospital, but he did call her there. He inquired as to how she was doing, but she said that he did not ask her about the Baby, nor did he make any offers to give her money, or clothes, nor did he [*4]ask if she needed anything. She was eventually discharged from the hospital, but the Baby remained, although she testified that she did not know the reason for this. Medicaid paid for all of the birth expenses.

Garrett testified that she returned home to 102 Wall Street. Once again, Brown had been there caring for the children in her absence. She stated that after she came home, she occasionally saw Brown. She said that Brown did not ask him why the Baby did not come home with her, and that they did not engage in any conversations about the Baby. She also testified that she did not have any provisions for the Baby such as a crib, diapers, or formula, and that Brown had not provided these items either. She testified that her next youngest child was Sheila, who was fourteen to fifteen months old at the time and that she did not use a crib or drink formula anymore. She acknowledged that their child Sheila had stayed in the hospital for a month after her birth. Similarly, she testified that they did not discuss the fact that Sheila had remained in the hospital, and Brown had not asked any questions about it at the time. However, she stated that Brown had gone to the hospital in Syracuse to visit their daughter.

Garrett testified that when she came home she needed to use a walker. She stated that Brown helped care for the kids during this time and did some cooking for them, but that she cared for herself. Garrett stated that she went to Surrogate's Court on or about July 18, 2008 to sign the adoption papers to allow the Harneys to adopt the Baby. She testified that at the time she wanted to give up the child for adoption and that she has never changed her mind about this. Garrett said that she did not recall who arranged for her to be in court on that day, nor how she knew that she had to go to Oneida County Surrogate's Court. She denied receiving a notice from the court to appear on that day. Garrett testified that she just showed up. Garrett said that when she sat down in Surrogate's Court there was a man next to her, now known as attorney Norman Deep, Esq. She said that she had never seen him before, nor ever talked to him before, and that she did not know why he was there. She denied that there were even any introductions between them. She said that this man did not explain the paperwork with her or go over it point by point, although she believes that the Surrogate told her about the paperwork. She said that she read the papers herself in court, and she signed the papers including the judicial consent. Garrett testified that she did not recall if the Surrogate asked her who the father of the Baby was, and when asked directly by this Court why she left the line blank on the judicial surrender that asked for the Baby's father's name, she said that she must have over looked it. She admitted that she unequivocally knew when she signed the consent that Brown was the Baby's father. She also testified that she did not recall Mr. Deep informing the Surrogate that she had an opportunity to consult with Mr. Deep, or Mr. Deep's representations that he had an extensive phone conversation with her, prior to the court appearance. Further, Garrett denied having been interviewed by the adoption investigator, Sonya Shepard.

Garrett testified that the next time she and Brown talked about the Baby was at the end of September 2008. According to Garrett, Brown called the hospital while Garrett was present and inquired as to the whereabouts of the Baby, who had still not come home. Unhappy with the answer he received, he began throwing things, and acting "ridiculous." He asked her where the Baby was but she refused to tell him. Garrett testified that she never told him who had the Baby. She felt that since Brown had refused to talk to her about the Baby in the past when she needed to talk to him about it, then there was no reason for her to discuss it with him now. In fact she [*5]testified that she felt he had no right to know about the Baby. She testified that they had another argument over the Baby about three weeks later, on or about October 17, 2008. In between arguments, Brown had continually asked her about the whereabouts of the Baby, but she refused to tell him. According to Garrett, their argument on October 17 became physical, and Brown punched her in the face. The police were called, and Brown was arrested. She testified that at some point, Brown went through her pocketbook and took out a piece of paper with Lynn Harney's name on it. However, Garrett she denied ever telling Brown that the Harneys had the Baby. On or about October 28, 2008, Garrett stated that she filed a Family Offence petition against Brown. He has not been with her at 102 Wall Street since that date.

The next witness to testify was Leroy Harney. Mr. Harney is the putative adoptive father of the Baby, and is the husband of Lynn Harney. He stated that he was present at the hospital for the birth of the Baby. He stated that he never thought about the father of the Baby during this process. He said that he was never advised not to talk to Brown or not to contact him.

The next witness to testify was Brown. Brown stated that he has known Garrett for the last fourteen years. He confirmed that he and Garrett are the parents of five other children and the Baby. He testified that although he has had at least three other residences over the years, most notably 314 Nichols street (for seventeen months starting in September 2007), he has predominantly lived with Garrett and the children. He testified that on a thirty day monthly basis, he spent every day and night at Garrett's residence. The only exceptions to this would be when they would have arguments in which she would call the police to have him leave. On those occasions he would retreat to his alternate residence. He did keep some clothes, and would shower and change at Nichols Street as well as check his mail there, but he also kept clothes and would shower and sleep with her and their children at 102 Wall Street. He testified that there was a time in 2004 when he participated in alcohol and drug rehabilitation through the Oasis Program. However, he did that because he was homeless after being thrown out of the house by Garrett. He testified that he lied about drug use in order to gain entry to the program. After the inpatient phase, he lived on Park Avenue in Utica. He visited with Garrett every now and then at that point while he continued the program. After about eleven months, he testified that Garrett took him back and he returned home to be with his family. Overall, Brown testified that he spent the majority of his time at Garrett's residence.

Brown testified that he loves his children and that he does many things with them including teaching them things, helping them with their homework, taking them to and from school, attending their school functions, and taking them other places. In particular he testified that he has taken the children to New York City within the last five years to visit his family. He also stated that he takes care of them at home by cooking and cleaning for them. Brown testified that he has also cared for Garrett when she has been sick over the years. When each of the children were born it was him who stayed home to care for the other children. Brown testified that he is unemployed and for support he relies on Social Services in the form of cash assistance and food stamps. He stated that all of his money is spent on the children and that he gives his money to Garrett.

With regard to the pregnancy, Brown testified that Garrett told him about it in her seventh month. She said to him that she was "tired of having all these babies." He said that he raised the option of abortion with her, but she told him it was to late. Initially, Brown testified that Garrett [*6]never told him that she was going to have the Baby adopted, however he subsequently stated that she did mention adoption but he could not recall when she said that. In response to the adoption comment, he testified that he told Garrett to give him the child. Garrett responded that "you can't take care of yourself, how are you going to care of the baby." Brown testified that Garrett knew that the mention of adoption was considered "fighting words" to him, so she did not say anything about it. He acknowledge that Garrett told him when she was pregnant that she did not want to have the Baby, and he also acknowledged that the topic of adoption was not something he wanted to hear about. Brown admitted that Garrett's friend were giving him hints and clues that she was going to give the baby up for adoption, and that her friend Barbara Jones told him that Garrett was going to do it.

Brown testified that on the day she went into labor, he called the ambulance to bring her to the hospital. He said that Garrett did not want anyone to go to the hospital with her, and that she did not want him to visit her in the hospital. He testified that he called Garrett in the hospital on a couple of occasions. During these calls, Garrett told him that she and the Baby were doing fine. She did not ask him for anything. He did not ask her any questions about the Baby and she did not tell him anything about the Baby. Brown testified that he was never told that the Harneys were at the hospital during the birth, nor that they would take the Baby home from the hospital.

Brown testified that they already had everything they needed for the Baby and that he expected the Baby would come home. They had a crib, and left over supplies from the next youngest child in the home who was only two years old, including Pampers, and blankets. Also, he stated that he had money to purchase whatever else was needed.

While Garrett was in the hospital, Brown said that he was taking care of the children. He said that Garrett was in the hospital for about nine or ten days. During that time his concern was getting the house ready for Garrett to come home with the Baby, taking care of the kids, and getting things set up for Garrett. He did not visit Garrett or the baby in the hospital. When she did come home, she needed to use a walker for about a month. Brown stated at he catered to her needs, cooked, ran baths for her, and went to the store for her.

Brown testified that when Garrett came home from the hospital, the Baby did not come with her. He stated that he did not ask her why at that point because he assumed that the Baby had come early and needed to stay at the hospital. He said that Garrett smoked and drank throughout the pregnancy, and he assumed based on their experience with Sheila, who was hospitalized for thirty days in Syracuse after her birth, that the Baby had come too early. He said that Garrett did not talk to him at all about the Baby's condition after the birth. Brown testified that he would ask her about it periodically, but Garrett would not tell him anything. He further stated that it was difficult for them to discuss the Baby without arguing, so they discussed it very little. He wanted to wait for Garrett to get well because he knew a verbal fight would break out. He stated that he became impatient waiting for his son to come home. He felt embarrassed because people in the neighborhood knew Garrett was pregnant, but when they came over to the house, the Baby was not there, and he could not explain it. Brown had also notified his entire family as well of the birth. He said he had been excited about the birth.

At some point, which Brown later identified as August 2008, he called the hospital to find out where the Baby was because Garrett would not tell him anything. The hospital staff told him to ask the mother. She overheard this phone call and she said to him "you want to know where [*7]your son is?" and she then proceeded to hand him a piece of paper with Lynn Harney's name on it. He stated that he looked up the Harneys' phone number in the phone book, but he never called them. He said that he did not want to be arrested for harassment . He also went down to the Employment Center where Harney works, but he was told that he had to make an appointment to see her. He never followed up by making an appointment to see her. Again, he said that he was angry about the situation and he did not want to lose his cool and get into any trouble. Brown testified that up until the point that Garrett handed him the note that had with Lynn Harney handwritten on it, he truly believed that the Baby was coming home to them.

Brown testified that he never received any notice that there would be a proceeding in Surrogate's Court on July 18, 2008. In fact, he was home with their children during that time. Further, he testified that he has never given any consent to anyone for an adoption of the Baby. He is opposed to an adoption in this case, and he would like custody of the Baby.

Brown testified that he was involved with litigation regarding the other children before the Oneida County Support Magistrate in September 2008. He had not filed a paternity petition at that point for the Baby because he wanted to complete one thing at a time. He said he wanted to complete one thing at a time. In October 17, 2008, he and Garrett were involved in a domestic dispute wherein he pushed her and hit her in the face. He was arrested as a result of the incident. On October 28, 2008, Garrett filed a Family Offense petition in Family Court against him, and Temporary Order of Protection was entered mandating that he stay away from Garrett and the children. Brown testified that right after the incident on October 17, 2008, he went to Family Court and filed a paternity petition for the Baby. Brown testified that he waited until October to file his paternity petition because he did not know what information to put down about the Baby because Garrett refused to tell him anything about him. Ultimately, he missed his court date for the paternity petition and same was apparently dismissed without prejudice on December 22, 2008. In an affidavit as part of his application to vacate the dismissal, Brown said that he was late to court and that is why he believed the case was dismissed. He said testified that he does not know why he did not re-file the paternity petition on the day he was late to court.

Brown's application to vacate the paternity dismissal was granted by this Court, and paternity testing was done, resulting in Order of Filiation dated March 2, 2009. On March 3, 2009, Brown filed a custody petition for the Baby. Brown testified that there has never been a neglect proceeding filed against him regarding any of his other children, and no children have ever been removed from him. He testified that he is now living at 1115 Schuyler Street, Utica, in a two bedroom residence. He had made arrangements for it to be furnished on the day of trial, August 11, 2009. The residence has a crib and clothes are on the way. He stated that he has contacted the Department of Social Services to let them know he is in the process of getting his son. He has signed up for parenting classes as well. Brown stated that he would be able to take the child on August 11, 2009, the day he testified.

The next witness to testify was Sonya Shepard. She performed the adoption investigation for Surrogate Court in this case, which is now before this Court. Her report is dated July 16, 2008. She testified that she received a packet of information from Surrogate's Court that had the relevant information to conduct her investigation. She noted that the paperwork listed Brown as a "possible father", however the Petition clearly names him as the parent of the Baby. In the course of her investigation she interviewed the Harneys but she did not speak with either Garrett [*8]or Brown.

Margaret Kojac and Lucille Soldato also testified during the trial, however, the Court finds their testimony not to be relevant to the issues before the Court.

Law

The starting point for an analysis regarding the necessity for consent by an unwed father

of a child less than six months of age upon placement for adoption is the seminal case of Matter of Raquel Marie X, 76 NY2d 387 [1990]. In Raquel Marie X., the Court of Appeals undertook an examination of Domestic Relations Law § 111(1)(e) which is the statute addressing the issue of when consent is required for adoptions involving new born infants placed prior to 6 months of age. The statutory language of Domestic Relations Law § 111(1)(e) reads as follows:

"Subject to the limitations hereinafter set forth consent to adoption shall be required as follows:...(e) of the father...of a child born out-of-wedlock who is under the age of six months at the time he is placed for adoption, but only if: (i) such father openly lived with the child or the child's mother for a continuous period of six months immediately preceding the placement of the child for adoption; and (ii) such father openly held himself out to be the father of such child during such period; and (iii) such father paid a fair and reasonable sum, in accordance with his means, for the medical, hospital and nursing expenses incurred in connection with the mother's pregnancy or with the birth of the child."

In Raquel Marie X., the Court of Appeals held that the statutory requirement that an unwed father openly live with the mother before the child's placement for adoption neither legitimately furthered that State's interest nor sufficiently protected the unwed father's interests, and therefore declared section 111(1)(e) unconstitutional (Raquel Marie X, 76 NY2d 387, 394). The Raquel Marie X. Court recognized that the imposition of a new law to rectify the constitutional problems in this situation was the prerogative of the Legislature, however, in the interim, it was necessary to offer the lower courts guidance in deciding consent to adoption issues before any new legislation would be passed. Thus, the Court of Appeals set forth the essential principals to be followed, as gleaned from the relevant United States Supreme Court decisions, which define an unwed father's right to in effect veto an adoption of their new born child (Id. at 408). The language specifying the standards as set forth in Raquel Marie X. is as follows: "In the case of new born infants, we take this to mean that the qualifying interest of an unwed father requires a willingness to assume full custody of the child — not merely to block adoption by others. In this connection, any unfitness, or waiver or abandonment on the part of the father would be considered by the courts, as they would whenever custody is in issue (see, Matter of Bennett v. Jeffereys, 40 NY2d 543).An assertion of custody is not all that is required. The [US] 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. In reaching thisdetermination, courts should give due weight to the remaining portions of [*9]Domestic Relations Law sec. 111 (1)(e), which were directed to that same objective.... Perhaps most significantly, they establish the period in which the father's manifestation of responsibility for the child is to be assessed — the six continuing months immediately preceding the child's placement for adoption. The interim judicial evaluation of the unwed father's conduct in this key period 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 factors evincing a commitment to the child." (Id. at 408).

Since 1990, the New York State Legislature has repeatedly failed to pass legislation to remedy the constitutional defects in Domestic Relations Law sec 111(1)(e), and hence the Raquel Marie X standards have continued to set the precedent in this area. The Court of Appeals in the case of Matter of Seasia D., 10 NY3d 879 [2008] recently continued the standards announced in Raquel Marie X, in announcing that "for a biological father's consent to be required before an adoption may proceed, he not only must assert his interest promptly (bearing in mind the child's need for early permanence and stability) but also must manifest his ability and willingness to assume custody' during the six months prior to the child's placement (Matter of Seasia D., 10 NY3d 879, 880 [2008], quoting Matter of Raquel Marie X., 76 NY2d 387, 402 [1990])." The Seasia D. Court also reiterated that the factors to be considered in evaluating the unwed father's conduct in the key period may include a public acknowledgment of paternity, payment of pregnancy and birth expenses, steps taken to establish legal responsibility for the child, and other factors evincing a commitment to the child (Seasia D., 10 NY3d at 880, quoting Matter of Raquel Marie X., 76 NY2d 387, 408).

The Court of Appeals in Matter of Robert O. v. Russell K., 80 NY2d 254 [1992] took a further opportunity to address the Raquel Marie X. standards within the context of allegations that the unwed father was unaware of the birth and subsequent placement for adoption of the child by the mother, shortly after birth. The Court reiterated that an unwed father of an infant placed for adoption immediately at birth faces a conundrum in that although he may wish to establish his parental rights, his opportunity to do so may vanish before he actually has a chance to do so. Thus, in some of these circumstances, the Court observed that the Constitution does protect the unwed father's opportunity to develop a relationship with his child (Matter of Robert O. v. Russell K., 80 NY2d 254, 262 [1992]; Raquel Marie X., 75 NY2d at 401-402). However, this right to the opportunity to develop a relationship does not extend to all unwed fathers nor does it arise from mere biology. Rather, this right to an opportunity exists only in unwed fathers who first manifest a willingness to assume full custody and do so promptly (Robert O., 80 NY2d at 262). Further, promptness is measured in terms of the baby's life, and not by the start of the unwed father's awareness of the child. Thus, the time period in which the father must act is limited to the six continuing months immediately preceding the child's placement for adoption (Robert O., 80 NY2d at 264). The unwed father in Robert O. alleged that he was unaware of the pregnancy and subsequent adoptive placement. The Court noted that the mother did not tell him about the pregnancy, birth, and subsequent placement. However, there was no evidence of fraud or concealment of the pregnancy (Id. at 260). The mother simply did not tell the unwed father about these developments until ten months after the adoption had been finalized (Id. at 260). The [*10]Court noted that the unwed father's argument was that he was deprived of the opportunity to manifest his willingness to assume custody by the state in the adoption proceeding which was held without his consent. However, the Court held that no one had prevented him from finding out about the mother's pregnancy. Thus, the unwed father's inaction during the critical time was solely attributable to himself (Id. at 265). Therefore, the unwed father had not promptly done all that he could to protect his parental interest, and his consent was not required (Id. at 263).

The decision in Robert O left open the possibility that an unwed father's inaction during the key six month time period prior to placement may not be solely his own fault. Similarly, the Fourth Department, in Matter of Adoption of Jarrett, 224 AD2d 1029, 1032 [4th Dept. 1996]), left open the possibility that active concealment would excuse the failure of a birth father to assert his parental interest in time (see also, Matter of Robert O. v. Russell K., 80 NY2d at 265). A more recent Fourth Department case, In Re Adoption of Matthew D, 31 AD3d 1103 [4th Dept. 2006], is particularly instructive on whether a biological father's consent to an adoption is required. In that case, the Court held that the biological father was a consent father where the biological mother had frustrated his efforts to become involved with the child, and that the biological mother never told him that she intended to place the child for adoption because she knew that he would try to prevent her from doing so, and that she decided to deliver the child in a hospital where he would be unlikely to find her and assert his rights (Matthew D., 31 AD3d at 1105). In Matthew D, the majority held that the lower court properly found that the credible evidence established that the biological father timely manifested his willingness and ability to raise the child (Id. at 1104). Moreover, the majority found that "the record supports the Surrogate's determination that the biological father did everything possible to manifest and establish his parental responsibility' (Id.)." Significantly, the Court noted that the biological father publicly acknowledged his paternity from the outset of the pregnancy, and that he repeatedly expressed willingness and desire to raise the child and that he reasonably and sincerely believed that the biological mother would not surrender the child for adoption (Id. at 1104, 1105).

Analysis

The parties and the Law Guardians appointed by the Court submitted written closing remarks. Obviously, the putative adoptive parents' and Brown's closings were consistent with their overall positions at trial. The Law Guardian for the Baby advocates that Brown should be considered a consent father, primarily citing the Matthew D. case. The Law Guardian for the remaining five Brown children advocates that Brown is at least a notice father, but she does not take a direct position on whether Brown should be found to be a consent father. However she argues that Brown has at least met the "willingness to assume custody" prong of Raquel Marie X. and that, in the absence of legislation, the barriers put forth by Garrett in this case should cause an elevation of Brown's status to a consent father.

In this Court's opinion, this case presents circumstances which are seemingly unique, as no factually similar cases were found. The Court found the testimony of Garrett to be incredible and untrustworthy. She demonstrated a clear bias in favor of this adoption and intense animosity towards Brown. Her testimony concerning how she came to appear at Surrogate's Court was almost laughable, if this were in any other context, rather than this extremely serious one before the Court. On the contrary, the Court found Brown's testimony to be very believable and honest. [*11]Based on the credible testimony, the facts are that Garrett and Brown have lived together intermittently for at least the last eleven years, and more likely than not, for the last fourteen years. Although the two never married, during that time they had five children, and now with the Baby, they have six children. They have lived together as parents of these children as well as Garrett's three children from previous relationships. Although Brown may have had other residences, the Court finds he primarily lived with Garrett and the children and he slept there with his family. He also played a major role in caring for and raising the children.

Both Brown and Garrett knew he was the father of the Baby. Brown in particular was excited about the birth. He told all of his family about it. In this way, he very clearly acknowledged his paternity. He certainly never denied it. Brown stayed home while Garrett was giving birth to the Baby in order to take care of the other children and to prepare for the Baby, which he had fully and sincerely expected to come home at some point. On the other hand, Garrett carefully concealed her plan to have the Baby adopted. She entered into adoption discussions with Harney without telling Brown. She allowed the Harneys to come to the hospital for the Baby's birth yet, she told Brown not to come to the hospital when the Baby was born. She went to Surrogate's Court to surrender the Baby without telling Brown. She did not list Brown as the father on the judicial surrender despite being absolutely sure that he was the father. In fact, Brown was home caring for the other children while she was executing the surrender. Further she would not tell him what was going on with the Baby or where the Baby was or why he did not come home from the hospital. Brown was aware that Garrett did not want to have the Baby, but the record is clear that he sincerely did not believe that she would give the Baby up for adoption and she concealed the adoption surrender from him, in such a way to totally deprive him of his rights. It is also important to note that the putative adoptive parents left the section numbered 12a-d completely blank which asks for specific reasons why consent of the biological parents is not required on their adoption petition filed on July 14, 2008. Arguably this was because the Baby had not been born yet when they had signed the petition initially on June 17, 2008. However, the Baby had been born by the time it was filed in Surrogate's Court on July 14, 2008. The petition should have been amended at that point to include this information. If that had been done, the issue of Brown's notice and/or consent may have been brought to light much sooner.

Garrett clearly knew that Brown was the father and that he did not want the child adopted. In fact, he told her he would raise the Baby. The facts undeniably demonstrate that Garrett knew that Brown would never consent to an adoption. Despite knowing Brown's feelings, Garrett was not deterred. She unilaterally set into motion a scenario deliberately calculated to deprive Brown of the opportunity to have a father-son relationship with the Baby. Because of Garrett's concealment, Brown had absolutely no opportunity to more formally manifest his parental intent within the six months preceding the adoptive placement, other than what he was doing, which was acting like a father in the Brown/Garrett family. Brown's window of opportunity was in effect slammed shut by Garrett's conduct.

It is worthy to note that under the law prior to Raquel Marie X. under Domestic Relations Law § 111(1)(e), Brown clearly would have met the standard for a consent father, given that he certainly was openly living with Garrett prior to the adoptive placement. Yet, in declaring Domestic Relations Law § 111(1)(e) unconstitutional, the Raquel Marie X. Court expanded [*12]unwed father's rights by its holding that the living together element was unduly restrictive in part because it did not sufficiently protect unwed father's rights (Raquel Marie X., 76 NY2d at 394). It is ironic that the putative adoptive parents in the case at bar would attempt to use Raquel Marie X. to curtail Brown's constitutional rights. The language of Raquel Marie X. did not attempt to define every situation by which an unwed father could manifest his responsibility for the child. Rather, the Court of Appeals held that the lower courts could consider "...other factors evincing a commitment to the child" during the "key period" of the six months immediately preceding the child's placement for adoption (Id. at 408). In this Court's view, the case at bar falls squarely into the"other factors" category. This was not a situation where two individuals have a sexual relationship and then go their separate ways until at some point after placement, the father finds out that a child that was born and placed for adoption. Brown was living with Garrett and their five children and her three other children in a family unit, when he learned in the seventh month of pregnancy that she was going to have their sixth child. He sincerely and naturally believed that this Baby was coming home, and but for Garrett's deceit, the Baby would have come home, or at least to him. It is unreasonable to expect him under these circumstances to have filed a paternity petition, a custody petition, or filed with the Putative Father Registry before she surrendered the Baby on July 18, 2008 and the child was placed with the Harneys.

Further, this Court finds that Brown's actions during the six months prior to the adoptive placement on July 18, 2008 were sufficient manifestations of his parental responsibility to protect his opportunity to establish a relationship with the Baby. Through living with Garrett and caring for both her and their children, he in effect was creating a home for the Baby during the relevant time period. In this Court's view, Brown's actions demonstrated the utmost of parental responsibility during this critical time. In many ways, Brown is similarly situated with the father in the Matthew D. case. As in Matthew D., Brown believed that the Baby was coming home and that Garret would not have the child adopted. Further, Garrett's actions frustrated Brown's efforts to be involved with the Baby within the key six month period prior to his placement. She never told Brown during the critical period that she was placing the Baby with the Harneys for adoption because she knew that those would be "fighting words" to him, and that he would object (Matthew D., 31 AD3d at 1105). Under the circumstances as outlined above, this Court finds that Brown did all that he could reasonably have been expected to do, and thus his consent to the adoption is required.

The putative adoptive parents have raised in their closing arguments the proposition that Brown's consent is not required based on Domestic Relations Law § 111(2)(a), which states that: "the consent shall not be required of a parent or of any other person having custody of the child: (a) who evinces an intent to forego his or her parental or custodial rights and obligations as manifested by his or her failure for a period of six months to visit the child and communicate with the child or person having legal custody of the child, although able to do so." The adoptive parents have argued that Brown failed to contact the Baby or the adoptive parents between July 18, 2008 through January 18, 2009, despite knowing the Harneys' name and address. Initially, the Court notes that this argument of abandonment was not raised during the trial. The trial centered on whether Brown was a notice or consent father, or put another way, whether he had any parental rights at all. However, the theory espoused under Domestic Relations Law §111(2)(a) is that the parent has parental rights which he has abandoned based on the failure to [*13]contact, which is a different argument altogether. In any event, the Court finds that this newly proffered argument has no merit. Clearly, based on the testimony, the earliest that Brown was aware of the Baby's placement with the Harney's was in August 2008. Thus, he was not able to contact the Baby until at least then. Further, during the time period of alleged abandonment, Brown commenced a paternity proceeding on October 20, 2008. Although he apparently was late for the return date of the petition which resulted in its dismissal, he filed a motion to vacate the dismissal on or about January12, 2009. Based on the initial concealment of the Baby, as well as his efforts to establish paternity during the six month period in question, the Court finds that he has not evinced an intent to forego his parental rights.

Accordingly, after careful consideration of the entire record and the credible testimony of Brown, this Court finds that his consent to the adoption of the Baby is required. Since Brown's consent has not been given, the adoption petition must be denied. Given this finding, the Court does not need to address the issue of whether notice of the adoption petition or the surrender should have been given to Brown.

Based on the denial of the adoption petition and pursuant to Surrogate Court Procedure Act § 1725, the Court is directing the Oneida County Department of Social Services Child Protective Services Unit to conduct an investigation and issue a written report to the Court by October 4, 2009 regarding the condition of the Baby as well as a home study of the father Christopher Brown focusing on his preparedness to assume custody of the Baby. The parties with counsel and Law Guardians as well as the CPS caseworker who prepares the aforementioned report are directed to appear in Court on October 5, 2009 at 11:30 am. The temporary order of guardianship shall remain in effect until that time. The Court will entertain any arguments at that time as to whether the temporary order of guardianship should continue pending any possible appeals.

This Court has not and shall not file or serve this decision/order or any order based hereon or contained herein; Counsel for Christopher B. Brown is hereby directed to do so, and serve all other parties.

Now, therefore, in accordance with the above decision, it is hereby

Ordered, Adjudged, and Decreed that Christopher B. Brown's consent for the adoption of the subject child in the petition filed on July 14, 2008 by Leroy V. Harney and Lynn M. Harney is required, and thus said petition is denied. The temporary order of guardianship shall continue until October 5, 2009, or upon further of the Court.

Dated: September 18, 2009Enter

______________________________

Hon. Bernadette T. Romano

Justice of Supreme Court