Corey L. v. Martin L.

• Decision Date: 13 July 1978
• Citation: 380 N.E.2d 266,45 N.Y.2d 383,408 N.Y.S.2d 439
• Parties: , 380 N.E.2d 266 In the Matter of COREY L. by Gordon K. et al., Respondents, v. MARTIN L., Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 439

408 N.Y.S.2d 439

45 N.Y.2d 383, 380 N.E.2d 266

In the Matter of COREY L. by Gordon K. et al., Respondents, v. MARTIN L., Appellant.

Court of Appeals of New York.

July 13, 1978.

Janet W. Hill, Norwich, for appellant.

Clifton M. Tamsett, Jr., Norwich, for respondents.

OPINION OF THE COURT

COOKE, Judge.

Despite recent changes in statutory law, there remains a heavy burden of constitutional magnitude on one who would terminate the rights of a natural parent through adoption. We hold that on this record that burden has not been satisfied.

This is an adoption proceeding in which petitioners, the natural mother and her second husband, assert that the respondent natural father has abandoned the child and hence that his consent is not required. Respondent vigorously contests the allegation and seeks to retain his parental relationship.

The male child, the only offspring of the former union, was born on November 10, 1969. The natural father entered the Air Force in November, 1970 and was discharged on October 19, 1973. During the father's military service, in August 1971, the parties entered into a separation agreement which provided that the mother would have custody of the boy and that the father would pay child support of $25 per week. Shortly thereafter, on August 13, 1971, they divorced and on May 19, 1973 the natural mother married the copetitioner in this proceeding. Then, in May of 1974, the petition for adoption ensued.

Both petitioners and respondent reside in the same rural area. While the latter was in the military service, he regularly visited the child whenever he was home on leave. However, from the time of discharge from service in October of 1973 until the commencement of hearings before the Family Court on October 29, 1975, he visited the child only two or three times and called the infant on approximately four occasions. In addition, owing to the fact that all of the parties live in the same community, there may have been chance meetings at a grocery store or when the boy was riding his bicycle, but nothing of a substantial nature. It also appears that respondent did not pay any support for the infant from October of 1972 up to the inception of the hearings in 1975, although there was some dispute over whether there was an overpayment in 1972, and it is quite certain that no support was paid after the mother remarried in 1973.

At the adoption hearings, the natural father unequivocally expounded his devotion to the child, partially tried to explain the failure to furnish support on the grounds of inability to pay, and expressed confidence in his paternal reliability as well as his future financial responsibility. His feelings for the child were corroborated by a disinterested babysitter characterized, with another, by the Family Court as having given the most reliable evidence. She testified that when she saw them together the infant was happy to see his father and that the latter appeared emotional in that tears came to his eyes.

Family Court decided that the respondent abandoned the child and in this regard concluded, as a matter of law, that the occasional visits with the infant were not sufficient to defeat the claim of abandonment. In so holding, the Judge applied an amendment to section 111 of the Domestic Relations Law which provided that "evidence of insubstantial and infrequent contacts by a parent with his or her child shall not, of itself, be sufficient as a matter of law to preclude a finding that such parent has abandoned such child" (L.1975, ch. 704, § 3). The court stated that based on this modification "The Legislature now requires that more than sporadic or minimal acts of parenthood be demonstrated in order to defeat the claim of abandonment."

Abandonment was also said to have resulted from failure to pay support for two years, and much was made of respondent's failure to take any action whatsoever to obtain visitation rights after May of 1974 when he received formal and actual notification of the petition to adopt his son. In addition, based on a report from the Department of Social Services, the Family Court concluded that it would be in the best interests of the child to allow the adoption.

The Appellate Division affirmed, with one dissent. That court also placed reliance on amendments to the law providing that proof of insubstantial contacts shall not, of itself, be sufficient, as a matter of law, to preclude a finding of abandonment.

Initially, it is observed that the amendment to section 111 of the Domestic Relations Law (L.1975, ch. 704, § 3) became effective on August 9, 1975, which was two months prior to the hearings in this matter and four months prior to the Family Court's order. Notably, the statute lacks the savings clause found in chapter 666 of the Laws of 1976 (see Matter of Goldman, 41 N.Y.2d 894, 393 N.Y.S.2d 989, 362 N.E.2d 619). In these circumstances, it was appropriate for the courts below to apply this modification in aid of their determinations (see Matter of Ray A. M., 37 N.Y.2d 619, 621, 376 N.Y.S.2d 431, 433, 339 N.E.2d 135, 136; Matter of Clayton v. Clement, 33 N.Y.2d 386, 353 N.Y.S.2d 173, 308 N.E.2d 690; Matter of L'Hommedieu v. Board of Regents of Univ. of State of N. Y., 276 App.Div. 494, 507, 95 N.Y.S.2d 443, 455, affd. 301 N.Y. 476, 95 N.E.2d 806, affd. 342 U.S. 951, 72 S.Ct. 624, 96 L.Ed. 707). However, while it was proper to apply the new standard, the manner of application was erroneous because of a more fundamental and overriding principle.

The Legislature has been for some time concerned with the stringent test for a judicial finding of abandonment (see Matter of Anonymous (St. Christopher's Home), 40 N.Y.2d 96, 101-102, 386 N.Y.S.2d 59, 62-63, 351 N.E.2d 707, 710-711; Matter of Orlando F., 40 N.Y.2d 103, 111, 386 N.Y.S.2d 64, 67, 351 N.E.2d 711, 715). Difficulty was encountered with the decisionally established standard which has been thus expressed: "Even where the flame of parental interest is reduced to a flicker the courts may not properly intervene to dissolve the parentage" (Matter of Susan W. v. Talbot G., 34 N.Y.2d 76, 80, 356 N.Y.S.2d 34, 38, 312 N.E.2d 171, 174). To be sure, the amendments to section 111 of the Domestic Relations Law were designed to override the "flicker of interest" test and thereby ease the burden on the party seeking to prove abandonment (see Memorandum of Joseph R. Pisani, New York State Senator, in support of Senate Bill 1992-A for 1975, N.Y.Legis.Ann., 1975, p. 62). Nevertheless, while accepting the change wrought by statutory law, this court has and must continue to respect constitutional limitations on the procedures for termination or deprivation of parental rights (see Matter of Goldman, 41 N.Y.2d 894, 895, 393 N.Y.S.2d 989, 362 N.E.2d 619, 620, Supra; Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 548, 387 N.Y.S.2d 821, 826, 356 N.E.2d 277, 282).

While a determination of whether parental rights have been surrendered ordinarily involves an evaluation of factual and evidentiary material, the ultimate question is whether the submitted proof establishes abandonment as a matter of law (see Matter of Bistany, 239 N.Y. 19, 24, 145 N.E. 70, 71; Matter of Maxwell, 4 N.Y.2d 429, 433, 176 N.Y.S.2d 281, 283, 151 N.E.2d 848, 849). Stated differently, there must be legally sufficient evidence to support the determination.

The statutory alteration under review seeks to overcome an impediment to termination of parental rights, but this provision becomes operative only if a finding of abandonment is thwarted because of a "flicker of interest" resulting merely from infrequent contact with the child. Analysis of the evidence should not begin with this amendment since it has no application to the court's initial evaluation of the circumstances, and it should not be employed until the court is fully satisfied that there has been an abandonment but for some insignificant contact with the child. The basic principles have not been abrogated (see Matter of Abraham L., 53 A.D.2d 669, 670, 385 N.Y.S.2d 103, 104; Cf. Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 548, 387 N.Y.S.2d 821, 826, 356 N.E.2d 277, 282, Supra ). In other words, the statute does not, and probably could not, mandate a conclusion that insubstantial visitation, Ipso facto, constitutes abandonment, but only advises that such infrequent contact shall not be sufficient as matter of law to preclude a finding by the court.

On this record, a determination of abandonment was unwarranted. It is not disputed that respondent consistently saw the child during his Air Force leaves. However, he was discharged from the service in October of 1973, and a short time thereafter, in May of 1974, was greeted with a petition for adoption. By this time, the natural mother, respondent's former spouse, had remarried and there is considerable indication that relations were strained. The hearings began in October of 1975 and, significantly, the courts below considered the time between the filing of the petition in May of 1974 and the beginning of court proceedings in determining the period of abandonment. Hence, not including this time segment, the claim of abandonment alleged in the petition covers a short period of at best the eight months following respondent's discharge from the military. In these circumstances, covering this relatively brief span of time, abandonment was not established.

While there may be instances when the interval between the commencement of a proceeding and the formal hearings should be considered as part of the period of abandonment, in this context inclusion of this segment manifests the lack of evidence in support of the determination (see Matter of Beshures, 41 A.D.2d...