§ 111 — Whose consent required

§ 111. Whose consent required. 1. Subject to the limitations\nhereinafter set forth consent to adoption shall be required as follows:\n (a) Of the adoptive child, if over fourteen years of age, unless the\njudge or surrogate in his discretion dispenses with such consent;\n (b) Of the parents or surviving parent, whether adult or infant, of a\nchild conceived or born in wedlock;\n (c) Of the mother, whether adult or infant, of a child born out of\nwedlock;\n (d) Of any person or authorized agency having lawful custody or\nguardianship of the adoptive child;\n (e) In the case of the adoption of a child transferred to the custody\nand guardianship of an authorized agency, foster parent, or relative\npursuant to section three hundred eighty-four-b of the social services\nlaw or a child transferred to the custody and guardianship of an\nauthorized agency pursuant to section three hundred eighty-three-c of\nthe social services law:\n (i) Of any person adjudicated by a court of this state or a court of\nany other state or territory of the United States to be the father of\nthe child prior to the filing of a petition to terminate parental rights\nto the child pursuant to section three hundred eighty-four-b of the\nsocial services law, an application to execute a judicial surrender of\nrights to the child pursuant to subdivision three of section three\nhundred eighty-three-c of the social services law, or an application for\napproval of an extra-judicial surrender pursuant to subdivision four of\nsection three hundred eighty-three-c of the social services law;\n (ii) Of any person who filed a petition in a court in this state\nseeking to be adjudicated the father of the child prior to the filing of\na petition to terminate parental rights to the child pursuant to section\nthree hundred eighty-four-b of the social services law, an application\nto execute a judicial surrender of rights to the child pursuant to\nsubdivision three of section three hundred eighty-three-c of the social\nservices law, or an application for approval of an extra-judicial\nsurrender pursuant to subdivision four of section three hundred\neighty-three-c of the social services law, provided that the parentage\npetition has been resolved in the petitioner's favor or remains pending\nat the conclusion of the proceedings pursuant to section three hundred\neighty-four-b, three hundred eighty-three-c, or three hundred\neighty-four of the social services law;\n (iii) Of any person who has executed an acknowledgment of parentage\npursuant to section one hundred eleven-k of the social services law,\nsection five hundred sixteen-a of the family court act, or section\nforty-one hundred thirty-five-b of the public health law prior to the\nfiling of a petition to terminate parental rights to the child pursuant\nto section three hundred eighty-four-b of the social services law, an\napplication to execute a judicial surrender of rights to the child\npursuant to subdivision three of section three hundred eighty-three-c of\nthe social services law, or an application for approval of an\nextra-judicial surrender pursuant to subdivision four of section three\nhundred eighty-three-c of the social services law, provided that such\nacknowledgement has not been vacated;\n (iv) Of any person who filed an unrevoked notice of intent to claim\nparentage of the child pursuant to section three hundred seventy-two-c\nof the social services law prior to the filing of a petition to\nterminate parental rights to the child pursuant to section three hundred\neighty-four-b of the social services law, an application to execute a\njudicial surrender of rights to the child pursuant to subdivision three\nof section three hundred eighty-three-c of the social services law, or\nan application for approval of an extra-judicial surrender pursuant to\nsubdivision four of section three hundred eighty-three-c of the social\nservices law;\n (f) In any other adoption proceeding:\n (i) Of the father, whether adult or infant, of a child born\nout-of-wedlock and placed with the adoptive parents more than six months\nafter birth, but only if such father shall have maintained substantial\nand continuous or repeated contact with the child as manifested by: (A)\nthe payment by the father toward the support of the child of a fair and\nreasonable sum, according to the father's means, and either (B) the\nfather's visiting the child at least monthly when physically and\nfinancially able to do so and not prevented from doing so by the person\nor authorized agency having lawful custody of the child, or (C) the\nfather's regular communication with the child or with the person or\nagency having the care or custody of the child, when physically and\nfinancially unable to visit the child or prevented from doing so by the\nperson or authorized agency having lawful custody of the child. The\nsubjective intent of the father, whether expressed or otherwise,\nunsupported by evidence of acts specified in this paragraph manifesting\nsuch intent, shall not preclude a determination that the father failed\nto maintain substantial and continuous or repeated contact with the\nchild. In making such a determination, the court shall not require a\nshowing of diligent efforts by any person or agency to encourage the\nfather to perform the acts specified in this paragraph. A father,\nwhether adult or infant, of a child born out-of-wedlock, who openly\nlived with the child for a period of six months within the one year\nperiod immediately preceding the placement of the child for adoption and\nwho during such period openly held himself out to be the father of such\nchild shall be deemed to have maintained substantial and continuous\ncontact with the child for the purpose of this subdivision;\n (ii) Of the father, whether adult or infant, of a child born\nout-of-wedlock who is under the age of six months at the time he is\nplaced for adoption, but only if: (A) such father openly lived with the\nchild or the child's mother for a continuous period of six months\nimmediately preceding the placement of the child for adoption; and (B)\nsuch father openly held himself out to be the father of such child\nduring such period; and (C) such father paid a fair and reasonable sum,\nin accordance with his means, for the medical, hospital and nursing\nexpenses incurred in connection with the mother's pregnancy or with the\nbirth of the child.\n 2. The consent shall not be required of a parent or of any other\nperson having custody of the child:\n (a) who evinces an intent to forego his or her parental or custodial\nrights and obligations as manifested by his or her failure for a period\nof six months to visit the child and communicate with the child or\nperson having legal custody of the child, although able to do so; or\n (b) who has surrendered the child to an authorized agency under the\nprovisions of section three hundred eighty-three-c or three hundred\neighty-four of the social services law; or\n (c) for whose child a guardian has been appointed under the provisions\nof section three hundred eighty-four-b of the social services law; or\n (d) who, by reason of mental illness or intellectual disability, as\ndefined in subdivision six of section three hundred eighty-four-b of the\nsocial services law, is presently and for the foreseeable future unable\nto provide proper care for the child. The determination as to whether a\nparent is mentally ill or intellectually disabled shall be made in\naccordance with the criteria and procedures set forth in subdivision six\nof section three hundred eighty-four-b of the social services law; or\n (e) who has executed an instrument, which shall be irrevocable,\ndenying the paternity of the child, such instrument having been executed\nafter conception and acknowledged or proved in the manner required to\npermit the recording of a deed.\n 3. (a) Notice of the proposed adoption shall be given to a person\nwhose consent to adoption is required pursuant to subdivision one and\nwho has not already provided such consent.\n (b) Notice and an opportunity to be heard upon the proposed adoption\nmay be afforded to a parent whose consent to adoption may not be\nrequired pursuant to subdivision two, if the judge or surrogate so\norders.\n (c) Notice under this subdivision shall be given in such manner as the\njudge or surrogate may direct.\n (d) Notwithstanding any other provision of law, neither the notice of\na proposed adoption nor any process in such proceeding shall be required\nto contain the name of the person or persons seeking to adopt the child.\n 4. Where the adoptive child is over the age of eighteen years the\nconsents specified in paragraphs (b), (c) and (d) of subdivision one of\nthis section shall not be required, and the judge or surrogate in his\ndiscretion may direct that the consent specified in paragraph (f) of\nsubdivision one of this section shall not be required if in his opinion\nthe best interests of the adoptive child will be promoted by the\nadoption and such consent cannot for any reason be obtained.\n 5. An adoptive child who has once been lawfully adopted may be\nreadopted directly from such child's adoptive parents in the same manner\nas from its birth parents. In such case the consent of such birth\nparents shall not be required but the judge or surrogate in his\ndiscretion may require that notice be given to the birth parents in such\nmanner as he may prescribe.\n 6. For the purposes of paragraph (a) of subdivision two:\n (a) In the absence of evidence to the contrary, the ability to visit\nand communicate with a child or person having custody of the child shall\nbe presumed.\n (b) Evidence of insubstantial or infrequent visits or communication by\nthe parent or other person having custody of the child shall not, of\nitself, be sufficient as a matter of law to preclude a finding that the\nconsent of such parent or person to the child's adoption shall not be\nrequired.\n (c) The subjective intent of the parent or other person having custody\nof the child, whether expressed or otherwise, unsupported by evidence of\nacts specified in paragraph (a) of subdivision two manifesting such\nintent, shall not preclude a determination that the consent of such\nparent or other person to the child's adoption shall not be required.\n (d) Payment by a parent toward the support of the child of a fair and\nreasonable sum, according to the parent's means, shall be deemed a\nsubstantial communication by such parent with the child or person having\nlegal custody of the child.\n