Statini v. Reed

170 N.Y.S.3d 625

In the Matter of Daniel J. STATINI, petitioner,

v.Paige A. REED, respondent.

(Proceeding Nos. 1 and 2).

In the Matter of Maximillian (Anonymous).

Paige A. R. (Anonymous), et al., appellants;

v.Daniel J. S. (Anonymous), respondent.

(Proceeding No. 3)

2021-07196

Docket Nos. V-3192-12/20A, V-3192-12/21B, A-3196-20

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

Argued—June 10, 2022

July 6, 2022

Ronna L. DeLoe, Larchmont, NY, for appellants.

Thomas T. Keating, Dobbs Ferry, NY, for respondent in Proceeding No. 3.

Karen C. Palumbo, Poughkeepsie, NY, attorney for the child.

VALERIE BRATHWAITE NELSON, J.P., CHERYL E. CHAMBERS, LINDA CHRISTOPHER, PAUL WOOTEN, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6 and a related adoption proceeding, the mother and Maximino S.-C. appeal from an order of the Family Court, Dutchess County (Denise M. Watson, J.), dated September 14, 2021. The order, insofar as appealed from, after a hearing, determined that the father's consent to the adoption of the subject child was required and, in effect, dismissed the adoption petition.

ORDERED that the order is reversed insofar as appealed from, on the law and the facts, without costs or disbursements, the adoption petition is reinstated, and the matter is remitted to the Family Court, Dutchess County, for further proceedings consistent herewith on the adoption petition.

At the time of the subject child's birth in February 2012, the mother and the father, who were never married, were not living together. In an order dated January 18, 2013, which was issued while the father was incarcerated, the Family Court awarded sole custody of the child to the mother, denied the father all contact with the child, and authorized the father to seek modification of the order once he was released from prison. The father claims that he was released from prison in February 2017, re-incarcerated for a parole violation in January 2018, released again in January 2019, and arrested on a new charge in September 2019. In July 2020, while the father was incarcerated, he filed a petition for parental access. Thereafter, the mother and her husband, Maximino S.-C., filed a petition to adopt the child, alleging that the father's consent to the adoption was not required, and the father filed a petition to modify the order dated January 18, 2013, so as to award him parental access.

After a hearing on the petitions, the Family Court, inter alia, found that the father had not abandoned the child, determined that the father's consent to the adoption was required, and, in effect, dismissed the adoption petition. The mother and Maximino S.-C. appeal.

Where a child is born out of wedlock, and adoption of the child is sought when the child is more than six months old, Domestic Relations Law § 111(1)(d) provides, in pertinent part, that the consent of the father is required "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."

Pursuant to Domestic Relations Law § 111(2)(a), a consent father may forfeit his rights by failure to visit the child or communicate with the child or the person having legal custody of the child, although able to do so, for a period of six months preceding the filing of an adoption petition (see Matter of Jahnya [Cozbi C.–Camesha B.], 189 A.D.3d 824, 826, 137 N.Y.S.3d 105 ; Matter of Vanessa Ann G.-L., 50 A.D.3d 1036, 1038, 856 N.Y.S.2d 657 ).

The father...