                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: April 2, 2015                       520082
________________________________

In the Matter of the Adoption
   of ISABELLA TT., an Infant.

DALTON C. et al.,
                      Appellants;

BRANDON A. et al.,
                      Respondents.

FRIENDS IN ADOPTION, INC.,
                    Appellant.

(Proceeding No 1.)
________________________________              MEMORANDUM AND ORDER

In the Matter of BRANDON A.,
                    Respondent,
      v

MELISSA TT.,
                      Respondent,
     and

FRIENDS IN ADOPTION, INC.,
                    Appellant.

DALTON C. et al.,
                      Appellants.

(Proceeding No. 2.)
________________________________


Calendar Date:    February 20, 2015

Before:    Lahtinen, J.P., Garry, Rose and Devine, JJ.

                               __________
                                 -2-                520082

      Sullivan Keenan Oliver & Violando, LLP, Albany (Michael D.
Violando of counsel), for Friends in Adoption, Inc., appellant.

      Mary Walsh Snyder, Loudonville, for Dalton C. and another,
appellants.

         William V. O'Leary, Albany, for Brandon A., respondent.

         Michelle I. Rosien, Philmont, for Melissa TT., respondent.

         Carol R. Stiglmeier, Albany, attorney for the child.

                              __________


Lahtinen, J.P.

      Appeals (1) from an order of the Family Court of Albany
County (Kushner, J.), entered November 20, 2014, which dismissed
petitioners' application, in proceeding No. 1 pursuant to
Domestic Relations Law article 7, for the adoption of Isabella
TT., (2) from an order of said court, entered November 20, 2014,
which granted petitioner's application, in proceeding No. 2
pursuant to Family Ct Act article 6, for custody of Isabella TT.,
and (3) from an order of said court, entered November 20, 2014,
which, in proceeding No. 1 pursuant to Domestic Relations Law
article 7, directed petitioners to turn Isabella TT. over to
respondent Brandon A.

      From the summer of 2013 until mid-February 2014, respondent
Melissa TT. (hereinafter the mother) and Brandon A. (hereinafter
the father) resided together in South Carolina, where the father
paid almost all their living expenses.1 By March 2014, the
mother had relocated to New York City. When seeking to renew her
birth control pills prescription on March 19, 2014, she first
found out – reportedly to her shock – that she was pregnant. She


     1
        Given the absence from the record of a transcript of the
hearing, we accept Family Court's facts, which include
credibility determinations.
                              -3-                520082

was advised that she was in her 35th week of pregnancy and was
referred to respondent Friends in Adoption, Inc. (hereinafter
FIA). Although the mother informed FIA about the father, FIA
made minimal efforts to contact him (sending a letter to an
address where he had never lived) and allegedly told the mother
that the adoption process would go more smoothly if she did not
identify the father.

      The child was born April 21, 2014 and the mother executed
an extrajudicial surrender on April 23, 2014 in which she
declined to identify the father. The child was placed by FIA
with petitioners Dean B. and Dalton C. (hereinafter the adoptive
parents) on April 23, 2014. On May 6, 2014, the mother disclosed
for the first time to the father that she had been pregnant and
given birth to a child of whom he was the father. On May 11,
2014, the mother informed FIA that she wished to revoke her
surrender of the child, but FIA refused to return the child. In
late May 2014, the adoptive parents commenced proceeding No. 1
seeking approval of the child's adoption. On July 22, 2014, the
father pro se brought a paternity proceeding2 seeking to be
adjudicated as the father of the child and, shortly thereafter,
he pro se commenced proceeding No. 2 seeking custody of the
child.

      Upon the application of FIA and the adoptive parents,
Family Court conducted a hearing as to whether the father's
consent was required for the adoption (see Domestic Relations Law
§ 111 [1]; Matter of Raquel Marie X., 76 NY2d 387 [1990], cert
denied 498 US 984 [1990]). The court rendered a detailed written
decision setting forth numerous factual findings and concluding
that the father's consent was necessary. Family Court's order
regarding the father's consent (hereinafter referred to as the
adoption-consent order) was entered on November 20, 2014 and, on
that same day, a second order was entered granting the father
legal and physical custody and a third order directed the
adoptive parents to turn the child over to the father. FIA and


    2
        By order entered September 26, 2014, the father's
paternity petition was resolved by declaring him to be the
biological father of Isabella TT.
                                -4-              520082

the adoptive parents appeal.3

      Initially, we note that, in light of the obvious urgency
and compelling emotional implications for the parties, we issued
an expedited scheduling order for this appeal when we denied
FIA's motion for a stay (see 2014 NY Slip Op 91204[U]). Perhaps
because of such urgency, there are some apparent errors in the
notice of appeal and record. Further, although the adoption-
consent order was entered November 20, 2014, a final order
dismissing the adoption petition was thereafter entered on
December 12, 2014, and review of the intermediate order should
occur in the appeal from the final order (see Hamilton v Murphy,
79 AD3d 1210, 1211, n [2010], lv dismissed 16 NY3d 794 [2011]).
However, "[t]his Court has the discretion to treat a notice of
appeal as valid despite the notice being premature or containing
an inaccurate description of the order being appealed" (Matter of
Fifield v Whiting, 118 AD3d 1072, 1073 [2014]). FIA and the
adoptive parents, who have filed a notice of appeal from the
December 12, 2014 order, urge us to exercise our discretion and
review the merits of their appeal from the adoption-consent
order. Under the circumstances, we will treat the notice of
appeal as validly bringing before us the merits of the adoption-
consent order.

      Next, we consider the argument of the mother and attorney
for the child that the appeals should be dismissed since the
record does not contain the transcript of the evidentiary hearing
on the consent issue, apparently because the recording was of
such a poor quality. The failure to compile a proper record can
result in dismissal of an appeal (see Matter of Pratt v Anthony,
30 AD3d 708, 708 [2006]; Personnel Sys. Intl. v Clifford R. Gray,
Inc., 146 AD2d 831, 832 [1989]). However, FIA states in its
brief that it does not contest the factual findings set forth in
Family Court's decision and contend that, even accepting all
those factual findings, Family Court's legal analysis was flawed.
The father has not indicated that his position will be prejudiced
by the absence of a transcript, and he agrees that Family Court's


     3
        Although the adoptive parents did not submit a separate
brief, they stated in a letter that they agreed with FIA's brief.
                              -5-                520082

factual findings are uncontested. Accordingly, we will consider
the merits of FIA and the adoptive parents' challenge to the
adoption-consent order (cf. Personnel Sys. Intl. v Clifford R.
Gray, Inc., 146 AD2d at 832).

      "The father of a child born out-of-wedlock is entitled to
full protection of his relationship with the child, including the
right to deny consent to an adoption at birth by strangers, only
if he 'assert[s] his interest promptly . . . [and] manifest[s]
his ability and willingness to assume custody of the child'"
(Matter of Gionna L., 33 AD3d 1168, 1168 [2006], lv denied 8 NY3d
802 [2007], quoting Matter of Raquel Marie X., 76 NY2d at 402
[citation omitted]). Evaluation of the father's conduct
includes, among other things, factors such as "his public
acknowledgment of paternity, payment of pregnancy and birth
expenses, steps taken to establish legal responsibility for the
child, and other factors evincing a commitment to the child"
(Matter of Russell R. v Friends In Adoption, Inc., 64 AD3d 912,
913 [2009], lv denied 13 NY3d 710 [2009] [internal quotation
marks and citation omitted]; accord Matter of Seasia D., 10 NY3d
879, 880 [2008], cert denied 555 US 1046 [2008]; Matter of Gionna
L., 33 AD3d at 1168-1169). Family Court's many factual findings
included that: the father had paid up to 90% of the household
expenses when the mother resided with him; the mother was not
visibly pregnant while living with him; the mother did not know
she was pregnant until she had moved to New York City; FIA made
no reasonable effort to notify the father; the father was first
notified about the pregnancy and child on May 6, 2014; he was
unable to contribute to pregnancy expenses through no fault of
his own because he had no knowledge thereof; the mother was urged
by FIA to decline to identify the father of her child; and, once
the father became aware of the child, he filed a paternity
petition within about 10 weeks and then a custody petition and he
did so despite difficult logistics regarding filing (he lived in
South Carolina, the child had been born in New York City, the
adoption was pending in Albany County), as well as a lack of
legal representation by counsel. The father submitted an
affidavit stating that, after learning of some uncovered costs of
the birth, he was making arrangements to pay those costs. He had
a job and residence, and was able to take immediate custody of
the child. In light of the uncontested facts found by Family
                              -6-                  520082

Court, as well as the other relevant proof in the record, we are
unpersuaded that Family Court erred in determining that the
father adequately preserved his right to contest the adoption of
his child (see Matter of Matthew D., 31 AD3d 1103, 1104-1105
[2006], appeal dismissed 7 NY3d 837 [2006]).

      The remaining arguments have been considered and are
unavailing.

     Garry, Rose and Devine, JJ., concur.



     ORDERED that the orders are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
