In re Jonna H.

252 A.D.2d 839, 675 N.Y.S.2d 458, 1998 N.Y. App. Div. LEXIS 8583

Opinions

—Crew III, J.

Appeal from an order of the Family Court of Schoharie County (Bartlett, III, J.), entered May 5, 1997, which dismissed petitioners’ application, in a proceeding pursuant to Domestic Relations Law article 7, for adoption of Jonna H.

Petitioner Eileen I. (hereinafter the mother) and respondent are the biological parents of Jonna H. (born in 1990). In February 1996, the mother and her current spouse, petitioner Dennis I. (hereinafter the stepfather), commenced this proceeding pursuant to Domestic Relations Law article 7 seeking approval for the stepfather to adopt the minor child. In so doing, petitioners alleged, inter alia, that respondent’s consent was not required as he had abandoned Jonna by failing to visit the child and/or provide financial support. At the conclusion of the hearing that followed, Family Court found that petitioners had failed to establish by clear and convincing evidence that respondent had abandoned his daughter. Accordingly, Family Court dismissed the petition for adoption and this appeal by petitioners ensued.

The Court of Appeals has instructed that “ [abandonment, as it pertains to adoption, relates to such conduct on the part of a parent as evinces a purposeful ridding of parental obligations and the foregoing of parental rights — a withholding of interest, presence, affection, care and support” (Matter of Corey L v Martin L, 45 NY2d 383, 391). In this regard, the intent to forego such parental rights and obligations must be established by clear and convincing evidence, and “a biological parent’s failure to visit and pay support, although significant, are not determinative factors where they are properly explained” (Matter of Joshua, 216 AD2d 749, 751, lv denied 86 NY2d 709).

Here, although respondent admittedly left the mother when she was six months pregnant, he was present for his child’s birth and, according to the mother, saw Jonna every six to eight months after that, including her first birthday party. Additionally, the mother acknowledged that respondent sent the child birthday and Christmas cards, and the record established that respondent also sent the child age-appropriate gifts. Although petitioners characterize such contacts as “insubstantial” and argue that respondent’s “sporadic” visitations should not preclude a finding of abandonment, we are of the view that respondent has provided an adequate explanation for both his failure to see his child with greater regularity and his poor history of child support payments.

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The record reveals that following his daughter’s birth, respondent developed a substance abuse problem and, after a near fatal overdose in May 1993, entered a treatment program for approximately three months, during which time he apparently was not permitted to contact his child. It also appears that during the relevant time period, respondent was receiving treatment for a personality disorder. Additionally, the mother conceded at trial that she would not permit respondent, who relocated to Florida in January 1995 for financial reasons and thereafter lacked the funds to visit Jonna in this State, to disclose to Jonna that he was her father. In our view, respondent’s personal difficulties, coupled with the limitations imposed by the mother, certainly hindered respondent’s ability to foster a meaningful relationship with his daughter. As to the issue of child support, respondent, who voluntarily surrendered his professional license in an apparent attempt to avoid disciplinary charges, testified that he lived with his mother and primarily was employed as a waiter. Although the record indicates that respondent did earn certain income following his relocation to Florida, the record also reveals that respondent was unable to work for four months due to the injuries he sustained in a motor vehicle accident, as the result of which he incurred significant medical expenses. In sum, although respondent has not been a model parent, the record does not support a finding that he abandoned his child. Accordingly, Family Court properly dismissed the petition for adoption.

Yesawich Jr., Spain and Graífeo, JJ., concur.

In this regard, the mother testified that respondent had not made any support payments during the three years prior to the hearing and had made only 13 or 14 such payments since the child’s birth.