Jonathan A.H. v. Douglas W.M. (In re William)

206 A.D.3d 1696

170 N.Y.S.3d 447

In the MATTER OF the ADOPTION OF WILLIAM

Jonathan A.H. and Eleanor T.H., Petitioners-Appellants;

v.Amanda Y.D. and Douglas W.M., Respondents-Respondents. (Appeal No. 1.)

396

CAF 21-00834

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: June 10, 2022

D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR PETITIONERS-APPELLANTS.

PAUL B. WATKINS, FAIRPORT, FOR RESPONDENT-RESPONDENT DOUGLAS W.M.

KIMBERLY A. WOOD, WATERTOWN, ATTORNEY FOR THE CHILD.

PRESENT: SMITH, J.P., CENTRA, LINDLEY, AND CURRAN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is affirmed without costs.

Memorandum: In appeal No. 1, petitioners-respondents Jonathan A.H. and Eleanor T.H. (petitioners) appeal from an order that determined that the consent of respondent-petitioner Douglas W.M. (father) is required for the adoption of William, his biological son (see generally Domestic Relations Law § 111 ). In appeal No. 2, petitioners appeal from an order that awarded custody of the child to the father, and in appeal No. 3, petitioners appeal from an order that dismissed their custody petition.

Contrary to petitioners’ contention in these consolidated appeals, there is a sound and substantial basis to support the determination of Family Court that the father demonstrated "his willingness to take parental responsibility" ( Matter of Raquel Marie X. , 76 N.Y.2d 387, 402, 559 N.Y.S.2d 855, 559 N.E.2d 418 [1990], cert denied 498 U.S. 984, 111 S.Ct. 517, 112 L.Ed.2d 528 [1990] ). "[A] father who has promptly taken every available avenue to demonstrate that he is willing and able to enter into the fullest possible relationship with his under-six-month-old child should have an equally fully protected interest in preventing termination of the relationship by strangers, even if he has not as yet actually been able to form that relationship" ( id. at 403, 559 N.Y.S.2d 855, 559 N.E.2d 418 ).

Here, the father " ‘did everything possible to manifest and establish his parental responsibility’ under the circumstances ... He publicly acknowledged his paternity from the outset of the pregnancy ..., and, although he did not pay any expenses in connection with the pregnancy or the birth," he testified that all of those expenses were paid by the military ( Matter of Matthew D. , 31 A.D.3d 1103, 1104, 818 N.Y.S.2d 399 [4th Dept. 2006], lv dismissed 7 N.Y.3d 837, 824 N.Y.S.2d 207, 857 N.E.2d 528 [2006], quoting Raquel Marie X. , 76 N.Y.2d at 409, 559 N.Y.S.2d 855, 559 N.E.2d 418 ). Moreover, prior to the child's birth, the father pursued paternity testing and requested and received from the mother a commitment that he could have custody of the child, and actively began purchasing "items" in anticipation of obtaining custody of the child upon birth. Based on the mother's commitment, the father enlisted the help of his military commanding officers to obtain custody of his child (see Matthew D. , 31 A.D.3d at 1104, 818 N.Y.S.2d 399 ), and made plans for relatives or family friends to help care for the child until his enlistment in the military ended.

We thus respectfully disagree with our dissenting colleague and conclude that the father established his ability to assume custody of the child. Contrary to the position of the dissent and petitioners, custody and housing are separate and distinct concepts. A parent who lacks housing for a child is not legally precluded from obtaining custody. Certainly, active military members should not lose custody of a child due to their service to our country. Many parents enlist the aid of family members to help them provide housing, including single parents who serve in the military. That temporary inability to provide housing should not preclude them from asserting their custodial rights to the children where, as here, they have established their intent to embrace their parental responsibility.

Here, as in Matthew D. , the record supports the court's findings that the father "reasonably and sincerely believed that the biological mother would not surrender the child for adoption ..., and that she frustrated his efforts to become involved with the child" ( Matthew D. , 31 A.D.3d at 1105, 818 N.Y.S.2d 399 ; see Matter of Kiran Chandini S. , 166 A.D.2d 599, 601, 560 N.Y.S.2d 886 [2d Dept. 1990] ). The evidence at the hearing established that the mother lied to the father, telling him that she would give him custody of the child; misled petitioners into believing that the father did not want the child, even though she knew that he was aggressively pursuing custody; and misled the courts by filing a false affidavit stating that no one was holding himself out as the father (see Matter of Isabella TT. [Dalton C.] , 127 A.D.3d 1330, 1332-1333, 5 N.Y.S.3d 616 [3d Dept. 2015], lv denied 25 N.Y.3d 913, 2015 WL 3971362 [2015] ).

Where, as here, there is a basis in the record to support a court's determination whether a father's consent is required, we will not disturb that determination (see Matter of Ashton , 254 A.D.2d 773, 773, 677 N.Y.S.2d 844 [4th Dept. 1998], lv denied 92 N.Y.2d 817, 684 N.Y.S.2d 488, 707 N.E.2d 443 [1998] ; see also Matthew D. , 31 A.D.3d at 1104, 818 N.Y.S.2d 399 ; see generally Raquel Marie X. , 76 N.Y.2d at 408-409, 559 N.Y.S.2d 855, 559 N.E.2d 418 ). We have reviewed petitioners’ remaining contentions in these consolidated appeals and conclude that none warrants modification or reversal of any of the orders.

All concur except Smith, J.P., who dissents and votes to reverse in accordance with the following memorandum:

I respectfully dissent because I disagree with the majority that respondent-petitioner Douglas W.M. (father) was a consent father within the meaning of Domestic Relations Law § 111 (1) (e). To the contrary, I would reverse in all three appeals, make a finding in appeal No. 1 that the father was a notice father whose consent to the adoption of the child was not required under section 111 (1) (d), and dismiss the petitions in appeal Nos. 2 and 3 (see generally Matter of Kevin W. v. Monique T. , 38 A.D.3d 672, 673, 832 N.Y.S.2d 82 [2d Dept. 2007], lv denied 9 N.Y.3d 803, 840 N.Y.S.2d 762, 872 N.E.2d 875 [2007] ). In the seminal case on this issue, the Court of Appeals stated that a consent father, i.e., "an unwed father who has been physically unable to have a full custodial relationship with his newborn child[,] is ... 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" ( Matter of Raquel Marie X. , 76 N.Y.2d 387, 402, 559 N.Y.S.2d 855, 559 N.E.2d 418 [1990], cert denied 498 U.S. 984, 111 S.Ct. 517, 112 L.Ed.2d 528 [1990] ; see Matter of Robert O. v. Russell K. , 80 N.Y.2d 254, 263-264, 590 N.Y.S.2d 37, 604 N.E.2d 99 [1992] ). In order to be entitled to such protection, however, a father " ‘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" for adoption ( Matter of Seasia D. , 10 N.Y.3d 879, 880, 860 N.Y.S.2d 760, 890 N.E.2d 875 [2008], rearg denied 11 N.Y.3d 752, 864 N.Y.S.2d 801, 894 N.E.2d 1190 [2008], cert denied 555 U.S. 1046, 129 S.Ct. 629, 172 L.Ed.2d 610 [2008] ; see Matter of Lily R. , 283 A.D.2d 901, 903, 724 N.Y.S.2d 231 [4th Dept. 2001], lv dismissed 96 N.Y.2d 936, 733 N.Y.S.2d 375, 759 N.E.2d...