Thomas F. L., Matter of

• Decision Date: 27 January 1976
• Citation: 386 N.Y.S.2d 726,87 Misc.2d 744
• Parties: In the Matter of the Adoption by THOMAS F.L. of Shannon Linda T. adoptive child.
• Court: New York Family Court

Page 726

386 N.Y.S.2d 726

87 Misc.2d 744

In the Matter of the Adoption by THOMAS F.L. of Shannon

Linda T. adoptive child.

Family Court, Schenectady County.

Jan. 27, 1976.

Ronald R. Shaw, Scotia, for petitioner.

George Abdella, Gloversville, for respondent.

DECISION

HOWARD A. LEVINE, Justice.

Petitioner is seeking to adopt his wife's daughter by a previous marriage without the consent of the child's father. The issue to be determined is whether that consent can be dispensed with under Section 111 of the Domestic Relations Law on the grounds that the father abandoned the child.

The child's father and mother were married March 3, 1968 and very quickly thereafter encountered serious marital difficulties. They physically separated in May, 1968, although the mother was already pregnant, and never again lived together. The mother brought a support proceeding in Family Court in the fall of 1968, obtaining an order under which the father made payments of $10.00 a week until June, 1969, albeit at times only after the institution of violation proceedings. The child was born January 22, 1969.

Except for a single occasion when the father testified he saw the child at the hospital after her birth, he had no personal contact with her until July, 1970. In the interim the mother sued for divorce which he did not contest. The proof in the divorce proceeding was submitted in October, 1969, but the decree was not signed until April, 1970. During the pendency of the divorce proceeding, the father and mother made an understanding that he would stay completely out of her and the child's lives and in turn would be relieved of any support obligation for either of them. Pursuant to that understanding, the $10 a week support order was terminated by her in June, 1969.

In July, 1970 the father and mother met by coincidence and began seeing each other again for three or four weeks. They considered the possibility of reconciliation and remarriage but the mother ultimately decided against it. During this brief period, the father saw his daughter and was in her presence on a number of occasions. But, as he himself admitted, these contacts were purely incidental to his dates with the mother and did not represent a manifestation of any intent on his part to establish a relationship with the child. In fact, all contact with the child again ceased immediately upon the mother's decision not to reconcile.

The mother married the petitioner in 1971 and they have maintained a family unit with the child since then, to which has been added a child born of this present marriage. The testimony established that it has been a cohesive family unit and that the child regards the petitioner in every respect as her father.

The next contact of the father with the child occurred in the summer of 1973. The mother's parents rented a camp at Cargoa Lake and the child, who was then four years old, stayed with her grandparents for a period of over a week during July and then visited on weekends frequently thereafter. The father happened also to be occupying a camp on the same street. They met at the public beach and on one occasion another child told her that he was her real father. Without the knowledge of the mother, the grandparents permitted her on one or perhaps two occasions to stay over night at his camp, and she also visited him during the day on the weekends until the end of the summer. The period of contact lasted about six weeks. The father telephoned the mother seeking permission to see the child twice in September, 1973, once in December and once in January, 1974; each time he was refused. No other efforts were made by the father to seek contact with the child until the instant adoption proceeding was commenced, more than a year later, in the spring of 1975.

During the entire period from the child's birth the father has either lived in Schenectady or at Caroga Lake. Through most of this period, he has been gainfully employed in Schenectady at a substantial salary. Except for the three or four weeks in 1970 when he was dating her mother, and the six week period in 1973, he has had no personal contact with the child since birth. With the exception of the four telephone requests during the period from September to December, 1974, he has made no effort to communicate with the child or to inquire concerning her health or welfare. Since June, 1969 he has not contributed anything toward her support, nor has ever sent or offered to send gifts to her on any of the occasions when they normally might be expected. He has never commenced a legal proceeding to enforce any rights with respect to the child.

Clearly, the total indifference of the father to the child during the first four years of her life, until the summer of 1973, meets the requirement for a finding of abandonment under the case law, beginning with the Court of Appeals' decision in Matter of Bistany, 239 N.Y. 19, 145 N.E. 70 (1924) and ending with its most recent pronouncement in Matter of Susan W. v. Talbot G., 34 N.Y.2d 76, 356 N.Y.S.2d 34, 312 N.E.2d 171 (1974). During that period, he neither supported, inquired, visited nor communicated to evince any interest in the child, although financially, physically and geographically able to do so. Indeed, the instant case shows less excuse for the failure to assert parental rights or assume parental obligations than was shown for a three year period by the adolescent unmarried mother in People ex rel. Anonymous v. Anonymous, 10 N.Y.2d 332, 222 N.Y.S.2d 945, 179 N.E.2d 200, a custody case relied upon in Matter of Susan W., supra. Similarly the total inattention of the father to the child from January, 1974 until the filing of the petition for adoption in the spring of 1975 was not satisfactorily explained by him.

The issue for determination thus hinges on the effect to be given to the single spasm of attention on the part of the father in the summer of 1973, followed by the four telephone calls he made from September of that year to January, 1974. He argues that under Matter of Susan W., supra, these contacts showed at least a 'flicker of interest' sufficient to defeat the heavy burden of proof which must be met before a finding of abandonment can be made.

Analysis of the definition of abandonment applied in Matter of Susan W., however, and of the decisional law upon which it was based has led me to conclude that the language of the opinion relied upon by the father should not be indiscriminatingly followed, where there has been a long period of total inattention, without further inquiry into the nature and quality of the 'flicker' of interest shown.

The New York test for abandonment was enunciated at least as early as 1932 in Matter of Davis, 142 Misc. 681, 255 N.Y.S. 416, as 'conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child.' (at p. 691, 255 N.Y.S. at p. 428). This was adopted by the Court of Appeals in Matter of Maxwell, 4 N.Y.2d 429, at p. 433, 176 N.Y.S.2d 281, at p. 283, 151 N.E.2d 848, at p. 850:

'The mother did not, it is true, leave her child on a doorstep, but surely an abandonment may be established by proof of conduct less drastic than that. Just as plainly, a settled purpose to be rid of all Parental obligations and to forego all Parental rights spells out abandonment under section 111. When the appellant asserted that she did not want the baby and that she 'wanted' to be done with the matter 'as quickly as possible', when she did everything she could to conceal the child's very birth, and hid herself behind a false name, and when thereafter she returned to Canada and for Almost a year manifested not the slightest interest in the welfare of the child, his well-being or even his continued existence, she was Guilty of conduct that amounted to the abandonment found by the courts below. * * * '. (emphasis supplied)

In People ex rel. Anonymous v. Anonymous, 10 N.Y.2d 332, 222 N.Y.S.2d 945, 179 N.E.2d 200, Supra, the majority also established that a substantial period of inattention alone, when unexplained or insufficiently excused, can support an inference of abandonment. Both cases were decided over vigorous dissents which would have required 'Absolute and unequivocal Neglect and Refusal to perform a parent's * * * obligations', based upon the 'natural law and common law of the parent and child relation.' (Dissenting opn. pp. 337--338, 222 N.Y.S.2d p. 948, 179 N.E.2d p. 202, emphasis supplied)

Thus, the prevailing definition of abandonment before Matter of Susan W. emphasized the conduct of the parent as establishing his state of mind regarding Parental functions, and permitted a finding of abandonment on the basis of mere unexcused or unexplained failure to exercise these parental functions. Lower court decisions, such as Matter of Anonymous, 13 Misc.2d 653, 177 N.Y.S.2d 62, more explicitly described the common elements of parental obligation as follows (at p. 657, 177 N.Y.S.2d at p. 66):

'On the other hand, the court owes an obligation to the child and the adopting parents to find an abandonment when a proper showing has been made that the parent has neglected and refused to perform his natural and legal obligations of care and support, when he has withheld his presence, the demonstration of parental affection, or the opportunity on the part of the child to display filial affection. Failure to perform such duties by a parent constitutes a relinquishment of parental claims and an abandonment of the child. * * *'

It follows that where there has been a protracted period of totally unjustified failure to exercise parental functions, an isolated contact or expression of interest does not necessarily negate the inference that a person no longer wishes to act in the role of parent to a child. Such was the holding in People ex rel. Osborne v. Hayes, 284 App.Div. 143, 130 N.Y.S.2d 450. The child was left with its foster parents at nine...