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Court considered whether lack of contact by biological father was a basis to grant adoption of children without his consent. M.S. v. Michael UU. (In re Wyatt JJ.), 2023 N.Y. Slip Op. 50859 (N.Y. Fam. Ct. 2023)


According to DRL §111, consent from a parent is typically required for adoption in New York State. This applies to both parents unless specific circumstances exist. Consent is deemed necessary unless a parent’s rights have been legally terminated or if the parent has abandoned the child. In cases where a parent has relinquished their parental rights or has failed to maintain contact or support for the child, their consent may not be required for adoption. However, if both parents are alive and capable of providing consent, they must generally agree to the adoption for it to proceed legally. This statute aims to uphold the rights of parents while also ensuring that the best interests of the child are considered in adoption proceedings. It establishes a framework for determining when parental consent is necessary, thereby facilitating the adoption process while safeguarding parental rights and the welfare of the child.

Background Facts
In the adoption proceeding concerning Serenity JJ. and Wyatt JJ., the petitioner, referred to as Petitioner or Mother, testified regarding her relationship with the children and their biological father, Michael UU. The mother explained that she and Michael UU. were divorced in 2019 and that she subsequently married R.S. During the relevant six-month period from August 17, 2021, to February 17, 2022, Petitioner Mother stated that Michael UU. had no contact with the children, did not request visitation, and made no effort to communicate with them. She further testified that there were no legal restrictions preventing Michael UU. from contacting her or the children, nor did she block any attempts at communication.

Judicial notice was taken of Michael UU.’s custody petition, which only pertained to Serenity. Despite this, Petitioner Mother claimed to have received no other communication from Michael UU. during the relevant period. She also testified that Michael UU. provided no financial support for the children since their divorce, although there was no formal agreement prohibiting him from doing so.

On the other hand, Michael UU. testified that his parole conditions prevented him from contacting Petitioner Mother or the children during the relevant period. He claimed that he was not allowed to have any direct or indirect contact with them without a court order, citing parole restrictions.

The court also examined the parties’ divorce judgment and separation agreement, which addressed issues of custody and support. While Petitioner Mother acknowledged receiving no child support from Michael UU., she explained that this arrangement was agreed upon due to his unemployment at the time. However, Michael UU. argued that this agreement was also influenced by Petitioner Mother’s sale of his property to cover legal fees.

Despite their differing testimonies, both parties confirmed that there were no active orders of protection between them during the relevant period. Petitioner Mother also admitted to withdrawing amended adoption petitions filed earlier, which omitted certain criminal history details. However, she maintained that her criminal record only involved misdemeanors, not felonies.

Whether to grant the adoption petitions filed by the petitioner, considering the testimony and evidence presented regarding the biological father’s lack of contact and support for the children during the relevant six-month period, as well as the impact of parole restrictions on his ability to maintain a relationship with them.

the court held that Michael UU.’s failure to maintain contact or provide support for the subject children during the relevant six-month period demonstrated an intent to forego his parental rights and obligations.

The court held that consent from a parent for adoption, as per DRL §111, is required unless certain conditions are met. Specifically, the court found that in cases where the parents were married at the time of the child’s birth, consent is generally required. However, this requirement is subject to exceptions outlined in DRL §111(2)(a) and (6). These exceptions include instances where a parent demonstrates an intent to forego parental rights and obligations by failing to visit or communicate with the child for a continuous six-month period, despite being able to do so.

In this case, the court determined that the respondent, Michael UU., failed to provide consent for the adoption of the subject children, Serenity and Wyatt. Michael UU. did not maintain contact with the children or their legal custodian, the petitioner mother, during the relevant six-month period preceding the adoption proceedings, despite being capable of doing so. Additionally, Michael UU. did not demonstrate through competent proof that he should still be considered a consent father under DRL §111(6)(d) due to providing financial support. Therefore, his consent for the adoption of the children was not required under DRL §111.

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