Matter of Ethan
Annotate this CaseDecided on July 24, 2009
Family Court, Monroe County
In the Matter of an Adoption of a Child Whose first Dname is Ethan
v2-11
JAMES S. HINMAN, ESQ.
Attorney for Petitioner
Troy C.
Petitioner
NICOLE BAYLY-HENSHAW, ESQ.
Monroe County Conflict Defender
Attorney for Respondent
Jason S.
Respondent
GERALD MICHAEL LARUSSO, ESQ.
Legal Aid Society
Attorney for the child
Joseph G. Nesser, J.
Tarra C., hereafter referred to as Mother, and James S., hereafter referred to as Father, are the parents of one child, Ethan, d.o.b. June 7, 2005, hereafter referred to as Child, the issue of their non-marital union. The Order of the Genesee County Family Court dated January 3, 2006, awarded custody of the child to Mother with visitation to Father as agreed.
On February 25, 2009, Mother and her husband Troy C., hereafter referred to as Petitioner, filed the instant Adoption Petition so Petitioner would be allowed to adopt the child without the consent of Father, and to dismiss the custody modification and enforcement Petitions of Father filed on January 13, 2009. Father opposed the Adoption Petition that would allow Petitioner to adopt the child. The Court suspended Father's custody modification Petition pending the results of the current application by Petitioner. The Court having found both personal and subject matter jurisdiction, conducted a fact finding proceeding and finds as follows.
FINDINGS OF FACTFather testified that his only attempts to contact Mother [*2]concerning the child in the last twelve months and up to the Adoption Petition filing on February 25, 2009 were May 13, 2008 and June 20, 2008. These attempted contacts were letters by Father to Mother, which were admitted into evidence as Petitioner's 2 and 3. Father could not accurately recite his son's date of birth and testified that there was no response to his two letters. The first five months of 2008, Father was in a Cayuga rehabilitation inpatient program. During the last eighteen months prior to the Petition being filed, the first six months Father was in jail and the latter twelve months he was in rehabilitation. Father was convicted of Forgery and Criminal Possession Of a Controlled Substance in the Seventh Degree. Father is anticipated to graduate from Drug Court in June of 2009.
While in the CARS Rehabilitation Center, Father had limited contact to the outside world; although, he was not precluded from mailing letters, cards and making telephone calls. He testified that he only called his mother and no one else. Father does have another child named Zack, age 15, but does not have any contact with him. From June of 2008 to October of 2008, Father was in the FLACRA halfway house. Father testified that he last saw his child when the child was approximately one year old and that was three years ago in June of 2006. Father admitted that the child does not know him. While Father was inpatient at CARS there were no restrictions in contacting Mother. The child has always lived with Mother.
There were previous Orders of Protection. One expired in approximately December of 2006. The Order of Protection from Leroy Town Court dated December 28, 2006 directed that Father would refrain from offensive contact against Mother. The Order of Protection from Genesee County Family Court directed that Father refrain from offensive contact against Mother. These Orders of Protection were admitted into evidence as Petitioner's 6 and 7.
In 2006, 2007, and 2008 Father did not forward Christmas cards, Christmas gifts, birthday cards or birthday gifts to the child. The two Orders of Protection did not prevent Father from contacting or visiting the child. From the time of the child's birth to the Adoption Petition being filed in February of 2009, Father had direct knowledge of Mother's address and directly or by means of a third party could have communicated with the child through the Mother.
Also, for over one year prior to the filing of the Adoption Petition, Father never mailed or forwarded any child support or financial assistance to Mother for the child, including diapers, clothing, food or formula. Father admitted that the last time he gave Mother money for the child was the summer of 2007, which was the last time he was employed. Father is currently receiving welfare.
In addition, during 2008 Father admitted he did not forward any letters to the child and did not communicate directly or indirectly with the child. In 2008 Father was not incarcerated and was in
a substance abuse treatment facility. In 2007, Father admitted that for part of the year he was a construction worker and earned an income of at least $10.00 an hour and used all of his money to [*3]buy illegal drugs to satisfy his addiction. The Court finds Father's testimony to be both incredulous and unpersuasive.
Mother testified that the last contact Father had with the child was on September 15, 2006 briefly at the Monroe County Family Court. Mother has had no contact with Father from October of 2006 to May of 2008. The only contacts Mother had from Father concerning the child in 2008, were the two letters admitted into evidence as Petitioner's 2 and 3, dated May 13, 2008 and June 20, 2008. Father's January 13, 2009 Petition correctly cited Mother's address and she has lived there since September of 2008 to present. Therefore, Father knew where she lived. Mother had the same telephone number for the last seven years. From October of 2006 to January of 2009 there was no request from Father's family for visits so that Father could visit the child.
The last financial assistance that Mother received from Father for the child was January or February of 2006; diapers and two outfits. The last child support payment Mother received from Father for the child was $180.00 on November 7, 2005.
From September 2008 to present, Mother's telephone number was published. Mother never responded to the May 13, 2008 or June 20, 2008 letters received from Father. Mother testified that the two letters she did receive from Father, were to her and not to the child. The letters were apologetic. From 2007 to 2009 Father was in and out of rehabilitation centers for his drug addiction. The child only knows Mother's husband, Petitioner as his father. Mother testified that she never interfered with Father's contact with the child. There is a January 3, 2006 Genesee County Family Court Order awarding sole custody of the child to Mother with visitation to Father as mutually agreed upon. The Order was admitted into evidence as Petitioner's 8. The Court finds Mother's testimony to be both credible and persuasive.
Petitioner testified that he married Mother on November 23, 2008 and they lived together for the past three years with Cody, age 13, Devon, age 11, and Ethan, age 4. There were letters received by Mother from Father in May and June of 2008 requesting visitation, which were admitted into evidence. Petitioner testified that from August of 2008 until February of 2009, which is the six month period prior to the filing of the Adoption Petition, there was no other communication by Father directly or indirectly with the child including phone calls or letters. Neither Petitioner, Mother, or anyone else on their behalf interfered with Father's visitation or communication with the child.
In addition, no financial assistance or child support was forwarded from Father to Mother for the child. The Court finds Petitioner's testimony to be both credible and persuasive.
Ms. M. testified that she is a counselor at the Genesee-Orleans Council on Alcoholism and Substance Abuse and has been a specialist there since 2000. Some of her duties are to oversee 24 individuals, supplemental living, and follow up with drug and alcohol tests. She knows Father because she is his counselor.
Since September 11, 2008 to present she counsels Father at least once each week to review treatment goals, service plans, employment, mental health issues and sobriety. Ms. M. has never seen the child with Father. Father has a cellular telephone and access to a computer, library, mail, telephone, and the ability to purchase stationery from the store. [*4]
CONCLUSIONS OF LAW
"The consent of a Father to the adoption of his child will not be required if he has abandoned the child. The child will be deemed abandoned if the Father evinced an intent to forego his parental or custodial rights and obligations by failing for a period of six months prior to the filing of an Adoption
Petition to visit the child and communicate with the child or person having legal custody of the child although able to do so". DRL §111(2)(a).
"In the absence of evidence to the contrary, the ability to visit and communicate with a child or person having custody of a child shall be presumed". DRL § 111(6)(a).
DRL §111(6)(b) states that, "evidence of insubstantial or infrequent visits or communication by the Father shall not, of itself, be sufficient as a matter of law to prevent a finding that the consent of the
Father to the child's adoption shall not be required". Insignificant flickers of parental interest will not by themselves prevent a finding of abandonment.
The Court finds that actions speak louder than words which is the thrust behind DRL § 111(6)(c) which states that, "the subjective intent of the Father whether expressed or otherwise unsupported by evidence of acts specified in DRL § 111(2)(a) manifesting such intent, shall not prevent a determination that the consent of the Father to the child's adoption shall not be required".
In re Morgaine JJ, 31 AD3d 931 (3rd Dept, 2006), held that Father abandoned the child because within the six month period before the Adoption Petition was filed; Father did not visit the child; he did not speak to the Mother or child; no cards were mailed to the Mother or child; no letters were mailed to the Mother or child; no gifts were mailed to the Mother or child; no telephone calls were made to the Mother or child and no child support was forwarded to the Mother for the child. See Matter of Adoption of Patrick D, 52 AD3d 1280 (4th Dept. 2008), lv denied 11 NY3d 711 (2008)
In the instant case, it was uncontroverted that Father had not seen the child in well over one year before the Adoption Petition was filed nor did he speak to the child within that six month period. It was also uncontroverted that there were no cards, gifts, financial assistance or child support
forwarded by Father to Mother for the child at least six months prior to the Adoption Petition being filed. See also In re Joshua FF, 11 AD3d 738 (3d Dept, 2004)
In re Adoption of Brittany S, 24 AD3d 1298 (4th Dept, 2005) lv denied 6 NY3d 708 (2006), held that Mother abandoned the child because there were no visits at least eleven months prior to the Adoption Petition being filed and there was sporadic correspondence exchanged between the two children.
In the case at bar, Father's letters postmarked May 13, 2008 and June 20, 2008 were forwarded to Mother concerning the child. This was the only contact in over one year prior to the Adoption Petition being filed. This would constitute sporadic correspondence as contemplated in Corey L. v Martin L., 45 NY2d 383 (1978) and Brittany S., 24 AD3d at 1298.
In re Joshua FF, 11 AD3d at 783, held that no attempts by the Father to contact the child were made through other family members. [*5]
In the instant case, Father knew members both in his family and in Mother's family to contact, but never had them contact Mother to communicate with the child within six months prior to the Adoption Petition being filed.
In re Taylor OP, 303 AD2d 1024 (4th Dept, 2003), the Court held that Father abandoned the child. One of the numerous factors that was taken into account was that there was no contact between Father and the child at least eleven months prior to the Adoption Petition being filed; although, Father was able to do so.
In the case at bar, Father was able to contact Mother. He knew her address; her telephone number; and her mother's address and telephone number which were published. Father failed to contact Mother within six months prior to filing the Adoption Petition.
In re Keyanna AA, 35 AD3d 1079 (3d Dept, 2006), held that Father abandoned the child and his incarceration did not excuse his failure to maintain substantial and continuous contact with the child.
In the instant case, there was testimony that Father was incarcerated numerous times after the child was born, but his deliberate misconduct is no excuse or bar from a finding of abandonment.
Moreover, Father's incarceration occurred well over six months prior to the filing of the Adoption Petition, so his incarceration was irrelevant to this proceeding.
In re Krysheena, 265 AD2d 816 (4th Dept, 1999), held that Father abandoned the child and
an Order of Protection or incarceration would not prevent the abandonment.
In the case at bar, there was testimony that Mother had Orders of Protection against Father. Those Orders of Protection were from December 14, 2005 through December 14, 2006 and December 28, 2005 through December 28, 2006. Both Orders of Protection directed Father to refrain from offensive contact against Mother. Father was not precluded from contacting the child or from making arrangements with Mother to visit the child. Moreover, the expiration of the Orders of Protection was
more than a year prior to the Adoption Petition being filed; therefore, these Orders of Protection were irrelevant to the Adoption proceeding.
There was also no testimony that for at least six months prior to the filing of the Adoption Petition that Mother or anyone on her behalf, interfered with or precluded Father from contacting the child either directly or indirectly through third parties.
"Payment by a parent toward the support of the child of a fair and reasonable sum, according to the parents means, shall be deemed a substantial communication by such parent with the child or person having legal custody of the child". DRL § 111(6)(d).
Matter of Joshua "II", 296 AD2d 646 (3rd Dept, 2002), held that Father made no child support payments during the six month preceeding of the Adoption Petition. At the time of the hearing there was $4,000.00 in child support arrears still owed to Mother. The Court opined that evidence standing alone is clear and convincing of Father's intent to forego his parental rights.
In the instant case, the uncontroverted testimony from both Mother and Father was that for more [*6]than one year prior to the filing of the Adoption Petition, Father never provided any child support to Mother or any type of financial assistance whatsoever. Mother's last child support payment was received on November 7, 2005, and the last financial assistance she received from Father was February of 2006 which were diapers and two outfits.
CONCLUSION
After hearing all the testimony, reviewing the admitted exhibits, and upon the
recommendation of the attorney for the child in the best interests of the child, the Court finds that Petitioner has met his burden of proof by clear and convincing evidence, that Father evinced an intent to forego his parental rights and obligations that was manifested by his failure for a period of six
months to visit the child and communicate with the child or with Mother having legal custody of the
child, although able to do so, and of his failure to provide fair and reasonable child support according to his means for the child.
THEREFORE, it is
ORDERED, that Father, Jason S.'s, consent to the adoption of his son, Ethan, d.o.b. June 7, 2005 by Petitioner, Troy C., shall be dispensed with, it is further
ORDERED, that Jason S.'s Custody Modification and Enforcement Petitions filed on January 13, 2009 shall be dismissed, and it is further
ORDERED, that Petitioner, Troy C.'s Adoption Petition of the child filed on February 25, 2009 shall be allowed to proceed without any further notice to the biological Father, Jason S..
Signed this 24th day of July, 2009 at Rochester, New York.
DATED: July 24, 2009
_____________________________________
HON. JOSEPH G. NESSER
Family Court Judge
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
