Matter of Tyler (Anonymous)

134 A.D.3d 1130, 23 N.Y.S.3d 291

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 2015
• Docket: 2015-00470
• Status: Published

Opinion

Appeal from an order of the Family Court, Orange County (Lori Currier Woods, J.), entered December 19, 2014. The order, after a hearing, determined that the father had abandoned the subject child and that based upon such abandonment, the father’s consent was not necessary for the adoption of the child.

Ordered that on the Court’s own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see Family Ct Act § 1112 [a]); and it is further,

Ordered that the order is affirmed, without costs or disbursements.

The mother of the subject child, Tyler, and her husband petitioned to adopt Tyler. The petitioners alleged that they resided with Tyler and that the consent of Tyler’s father was not needed because the father abandoned Tyler in 2008.

Under Domestic Relations Law § 111 (2) (a), consent to adoption is not required of a parent who evinces an intent to forego his or her parental rights and obligations by his or her failure for a period of six months to contact or communicate with the child or the person having legal custody of the child although able to do so (see Domestic Relations Law § 111 [2] [a]; Matter of Kristin O., 220 AD2d 670 [1995]).

Here, the petitioners met their burden in establishing abandonment by clear and convincing evidence (see Matter of Anonymous, 20 AD3d 562 [2005]; Matter of Shaolin G., 277 AD2d 312 [2000]). The evidence showed that the father failed to see the child for four years, failed to financially support the child for years, and did not maintain any contact with the child through gifts or cards or any form of correspondence. The father failed to communicate with the mother and admitted to hanging up on her when she phoned him on an annual basis. Under these circumstances, the petitioners met their burden of establishing that the father abandoned the subject child (see Matter of Tiara G. [Theresa G. —Norman A.], 73 AD3d 920 [2010]; Matter of Luke, 65 AD3d 550, 551 [2009]; Matter of Anonymous, 20 AD3d 562 [2005]). Balkin, J.P., Austin, Sgroi and LaSalle, JJ., concur.