In re the Adoption of Hayley
OPINION OF THE COURT
Statement of Fact
On or about November 29,1999, Mr. J., natural father of the subject child, Hayley J., date of birth August 12, 1993, filed an application for custody and/or visitation alleging that Hayley’s mother, Mrs. P., has denied visitation to him with his child. Subsequently, Mrs. P., the child’s natural mother, together with her stepfather, filed an adoption petition on February 1, 2000, as well as a cross petition for custody on or about February 16, 2000. Both petitions allege abandonment of the child by Mr. J.; as far as the court can ascertain, there have been no previous applications by either party to establish any antecedent order of custody and visitation.
These parties, however, have litigated the question of child support. The first proceeding was in the nature of a paternity action commenced in Onondaga County Family Court before Hearing Examiner John W. Allen, Esq. Mr. J. admitted to paternity of Hayley on or about January 6, 1994. An order of filiation was entered accordingly; it does not appear that a support order was ever entered because the parties resided together at that time. Thereafter, on or about October 7, 1998, a support petition was filed in this court by Mrs. P. Following a preliminary appearance, a temporary order of support was entered on December 16, 1998, directing Mr. J. to pay child support in the amount of $60 per week for Hayley. The record of proceedings indicates that Mr. J. was unemployed as of that date, but anticipated that he would be starting new employment sometime after January 1,1999. Therefore, the temporary order provided that the child support payments due thereunder were to commence on January 22, 1999. The matter was scheduled for a continuation on March 11, 1999; however, Mr. J. failed to appear on the adjourned date. Accordingly, a permanent order of support was entered upon his default which required him to pay current care support in the amount of $54.60 per week. No application to vacate the default was ever filed, nor has there been any application for modification.
In these proceedings, the court must determine whether Mr. J. has effectively abandoned his child within the meaning of section 111 of the Domestic Relations Law, thus, obviating the need for his consent to Hayley’s adoption by Mr. P. and, otherwise, rendering moot his petition for custody and/or visitation from November 1999. Mr. and Mrs. P. have been represented in these proceedings by Robert F. Rhinehart, Esq. The court appointed Stephen W. Arnold, Esq. to represent the natural father, and Judith P. Burke, Esq. was appointed as Law Guardian for Hayley.
The court conducted an evidentiary hearing to determine the issue of abandonment. Said hearing commenced on May 3, 2000, and concluded on May 24, 2000. The court heard testimony from Mr. and Mrs. P., as well as from Mr. J., and received various items of documentary evidence. One of the arguments in these proceedings involved whether or not Mr. J. was providing child support for Hayley. Based upon a stipulation and consent of counsel, and in order to promote judicial expediency, the court took notice of the prior support proceedings which had transpired between the natural parents, inasmuch as the original support file (Docket No. F-758-98) was at the court’s disposal.
The factual determinations herein were made with due regard to the totality of the evidence presented and after appropriate weight and consideration was given to the respective parties’ testimony and veracity. Counsel for the parties were each afforded an opportunity to submit legal memoranda at the conclusion of proof; further, the court requested a confidential recommendation from the Law Guardian. The court received and considered said additional memoranda from all three counsel.
Perhaps the Court of Appeals said it best, when it stated that “the filial bond is one of the strongest, yet most delicate, and most inviolable of all relationships, and in dealing with it we must realize that a child is not a mere creature of the State for distribution by it” (see Matter of Corey L. v Martin L.,
Adoption proceedings are governed by article 7 of the Domestic Relations Law. The Court of Appeals in Matter of Andrew Peter H.T. (
Case law defines abandonment, as it pertains to an adoption, to be “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.” (See Corey L. v Martin L., supra at 391.) Abandonment must be established by clear and convincing
The statute refers to a “six month period” which is used to determine whether a father has failed to visit the child or otherwise communicate with the child or person having custody during said period. (See Domestic Relations Law § 111 [2] [a].) The statute does not provide any guidance on how to measure the six-month period; however, the case law does provide some insight. The Fourth Department has consistently examined the period prior to the filing of an adoption petition. (See Matter of Joseph,
Findings of Fact and Conclusions
Hayley’s natural parents, Mr. J. and Mrs. P., have had a longstanding personal relationship which predates Hayley’s birth out of wedlock on August 12, 1993. The parties continued to reside together as a familial unit until Hayley was approximately five years of age. Mr. J. left the common residence voluntarily on or about May of 1998. Nothing in the record would demonstrate that Mr. J. was not providing adequate support for Hayley during the first five years of her life, or otherwise actively participating in her upbringing during that time period. Following the parties’ May 1998 separation, however, there is not much dispute as to the fact that Mr. J. did not have much significant direct contact with Hayley. The reason(s) for said lack of contact, however, are the core of the controversy in this entire matter.
Mr. and Mrs. P. allege that Mr. J. has not taken any interest in Hayley’s education, nor otherwise been involved or attended any school functions during the last two years, despite the fact that Hayley attends first grade at the same elementary school where she had been previously enrolled in a preschool program; the last school function Mr. J. took part in was Hayley’s preschool graduation ceremony held in May of 1998. It does not appear that Mr. and Mrs. P. ever advised school officials that Mr. J. was the child’s father, nor did they themselves notify Mr. J. of school functions. There is nothing in the record to suggest that they ever encouraged Mr. J. to become involved in Hayley’s education; at the same time, there is nothing demonstrating that Mr. J.’s involvement in school activities was ever directly discouraged.
Mr. and Mrs. P.’s testimony also centered on a lack of communication from Mr. J. on significant dates, such as Hayley’s birthday and Christmas. Mr. J. apparently may have left a congratulatory balloon in her bedroom on her birthday in August 1998, but left no indication as to where it came from; he returned to the residence in September 1998, late at night to retrieve personal belongings, and on another occasion in
There is no question that Mr. J. knew where Hayley lived, since he had lived at that very location, together with Mrs. P., for more than two years starting in February 1996; Mr. and Mrs. P. continue to reside there to date with Hayley. The telephone number to the residence remained the-same for a period of time after May 1998; however, it was subsequently disconnected and a new unlisted telephone number was obtained. Mr. J. testified that he was not provided with the new telephone number; his testimony was not rebutted by either Mr. or Mrs. P.
Of overriding concern to the court on the issue of the lack of apparent communication between Mr. J. and Hayley is the court’s perception that Mrs. P. overtly discouraged Mr. J. from having contact with his daughter. Mr. J. testified that sometime in July of 1998, Mrs. P. left a note on his car windshield while it was parked at his place of employment which directed him to stay away. The note was apparently not kept, but he claims to have recognized the handwriting as that of Mrs. P. Mrs. P. did not rebut the existence nor the purported content of this note. The court is permitted to give credence to the validity of Mr. J.’s claim, by inference, based upon the fact that this testimony was not contradicted at all on the record.
Additionally, Mr. J. testified to a telephone call which purported to be from a New York State Trooper advising him that Mrs. P. had a “restraining order” prohibiting him from having any contact with either her or his daughter. While Mr. J. could not provide any specificity regarding the name of the trooper, nor the date of the alleged conversation, Mrs. P.’s testimony does corroborate his allegations to some extent. She
Mr. J, creates a negative impression as he does not present as a well groomed individual, speaks with a gruff voice and exhibits somewhat of a hostile demeanor. The court suspects that Mr. J.’s appearance and demeanor is not something which has just recently manifested itself, but rather characteristic of behaviors he exhibited during the entire period he was romantically involved with Mrs. P.; however, given his occupation as an auto dismantler and mechanic, the court does not find his appearance to be terribly out of the ordinary and it is reasonable to assume that he may have driven directly to the court from his place of employment. On the other hand, Mr. and Mrs. P. present as neat, well mannered, caring individuals. Given the courtroom presence of the parties, it would be easy to see how these individuals might not be socially compatible with each other. While these facts are not dispositive, the court finds them to be nevertheless relevant to the issue of whether or not Mrs. P. actively discouraged contact between Hayley and Mr. J., and as to whether Mr. and Mrs. P. simply wanted Mr. J. out of Hayley’s life.
While reasonable minds might conclude that Mr. J. may have been in a position to effectuate more contact with his daughter, the court is concerned that during the periods in question, and in light of the fact that there was no established order of custody between the parties, Mrs. P. seems to have taken the law into her own hands and made important determinations about Hayley without regard to the importance of Hayley’s long-established relationship with her natural father. Further, the court finds Mr. J.’s testimony surrounding this purported telephone conversation with a state trooper to be credible and that he may well have been told to stay away; it is not unreasonable to conclude that he relied upon that authority since he never attempted any direct contact with Mr. and Mrs. P. or Hayley subsequent to said occurrence. Neither Mr. or Mrs. P. testified to any confrontational acts by Mr. J. following the complaint made to the State Police. Therefore, the court does not interpret Mr. J.’s driving by the residence on a recurring
Counsel for Mr. and Mrs. P. argues that Mr. J. failed to pay “fair and reasonable” support and that the payments which were made should be deemed as “involuntary” because they were made by wage deduction order and that Mr. J. had additional income as a result of self-employment buying and selling junk vehicles for their scrap value. As for the amount of support paid, the support order was entered in accordance with the Child Support Standards Act and based upon the reported earnings of the natural father. The record of proceedings in the support matters aré devoid of any proof proffered of self-employment income. The record before this court indicates a consistent pattern of employment by Mr. J. at A & P Auto over several years whereby he would be hired, fired and rehired on a recurring basis. His testimony demonstrates that he performed odd jobs to support himself during these periods of unemployment. However, there is nothing in the record to demonstrate by clear and convincing evidence that Mr. J. was not otherwise providing fair and reasonable support in light of his financial circumstances.
The court does not subscribe to the proposition that support payments, which are made in accordance with a wage deduction order, are automatically deemed “involuntary.” The Legislature enacted changes, under chapter 170 of the Laws of 1994, to section 440 (1) (b) (2) of the Family Court Act and section 5242 of the Civil Practice Law and Rules, which provided that the issuance of income deduction orders shall be presumptive in all child support cases such that child support payments would be made through the SCU. Therefore, since the statute provides for support payments to be made by wage deduction order through the SCU, the mere fact that payments are being made in this manner in no way creates a presumption that the payments are involuntary. Mr. J. never filed any application to affirmatively challenge either the underlying support order, or the wage deduction which resulted therefrom. The court finds it appropriate on this record to deem the support payments as voluntary. This determination is based not only upon the frequency and number of payments which have been made to Mrs. P., but also upon Mr. J.’s acquiescence to said payments through a lack of any affirmative action, on his part, to either reduce, set aside or otherwise challenge the underlying support order.
The court also notes the existence of an additional factor which serves to vitiate an abandonment finding, under the the
It is procedurally significant that Hayley’s natural father filed for custody two months prior to the adoption application. Consequently, the court finds that given the support payments which have been made, together with the filing of the article 6 petition, the burden of proof is not upon the natural father, but rather upon the natural mother and prospective adoptive stepparent to prove abandonment. The court is persuaded by the analysis of the Queens County Family Court in Maria S. (supra), which held that a mother and stepfather would be unable to demonstrate abandonment as a matter of law where the natural father had filed a visitation petition and obtained a temporary order of visitation prior to the filing of the adoption petition which sought to dispense with his consent. While Maria S. does not represent binding authority upon this court, the court is inclined to agree with the analysis found therein inasmuch as the two cases are very similar.
Decision and Order
In considering the totality of circumstances presented in these proceedings which transpired prior to the adoption application being filed in February 2000, and which include the long-term relationship which Mr. J. had with Hayley of approximately five years, and the fact that Mr. J. is making support payments, albeit they are made by wage deduction, and, further, considering the State Police involvement in these matters, acknowledged by Mrs. P., which may well have resulted in Mr. J. being told by a police officer to stay away, and, finally, considering that Mr. J. has sought appropriate court intervention by filing an application for custody and/or visitation which predates the adoption application by more than two months, the court is led to the inexplicable conclusion that Mr. J. has not evinced an intent to forego his parental rights and responsibilities.
Based upon the foregoing, the petitioners have not met their burden of proof to establish by clear and convincing evidence