                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 9, 2015                      519438
________________________________

In the Matter of BELLA FF., an
   Infant.

MARGARET GG. et al.,
                    Respondents;            MEMORANDUM AND ORDER

JAMES HH.,
                    Appellant.
________________________________


Calendar Date:   June 5, 2015

Before:   McCarthy, J.P., Egan Jr., Lynch and Devine, JJ.

                             __________


     Eric K. Schillinger, East Greenbush, for appellant.

     Michelle I Rosien, Philmont, for respondents.

     Charles Thomas, Troy, attorney for the child.

                             __________


Egan Jr., J.

      Appeal from an order of the Family Court of Rensselaer
County (Cholakis, J.), entered June 26, 2014, which granted
petitioner's application, in a proceeding pursuant to Domestic
Relations Law article 7, to determine that respondent's consent
was not required for the adoption of his child.

      At all times relevant, respondent and the child's mother
were the unmarried parents of a daughter (born in 2009). When
the child was four weeks old, the local social services agency
removed the child from the mother's home and placed the child
with petitioner Margaret GG., the child's maternal aunt
(hereinafter the aunt), in the home that she shared with her then
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boyfriend/now husband, petitioner Stanley GG. The aunt
subsequently was awarded guardianship of the child1 and,
following the mother's death in 2013, petitioners filed a
petition and an amended petition seeking to adopt the child. In
so doing, they alleged that respondent's consent was not required
due to his lack of contact with the child. A hearing was held in
June 2014, at the conclusion of which Family Court determined
that respondent's consent was not required under Domestic
Relations Law § 111 (1) (d). Respondent now appeals.2

      We affirm. "A biological father's consent to adopt a child
over six months old who was born out of wedlock is required only
if the father 'maintained substantial and continuous contact with
the child as manifested by' payment of reasonable child support
and either monthly visitation or regular communication with the
child or custodian" (Matter of John Q. v Erica R., 104 AD3d 1097,
1098 [2013], quoting Domestic Relations Law § 111 [1] [d]; see
Matter of Asia ZZ. [Henry A.–Jason V.], 97 AD3d 865, 865-866
[2012]; Matter of Dakiem M. [Demetrius O.–Dakiem N.], 94 AD3d
1362, 1362 [2012], lv denied 19 NY3d 807 [2012]).3 As the
statute makes clear, Domestic Relations Law § 111 (1) (d) imposes
a dual requirement upon the biological father – satisfaction of
both the support and contact/communication provisions – and the


     1
        Respondent testified that he did not oppose awarding
guardianship of the child to the aunt, as he believed that such
award would be temporary.
     2
        Counsel for petitioners represented at oral argument that
respondent did not seek a stay pending appeal and, during the
pendency thereof, the child was in fact adopted by petitioners.
     3
        Although the child was placed in petitioners' home when
she was four weeks old, the petition and amended petition for
adoption were not filed until the child was nearly five years
old. Under these circumstances, this matter is governed by the
provisions of Domestic Relations Law § 111 (1) (d) (see Matter of
Vanessa Ann G.–L., 50 AD3d 1036, 1038 [2008], lv dismissed 11
NY3d 893 [2008]; compare Domestic Relations Law § 111 [1] [d],
with Domestic Relations Law § 111 [1] [e]).
                               -3-                519438

father's unexcused failure to satisfy either of these
requirements is sufficient to warrant a finding that his consent
to the proposed adoption is not required (see e.g. Matter of
Makia R.J. [Michael A.J.], 128 AD3d 1540, 1540 [2015]; Matter of
Asia ZZ. [Henry A.–Jason V.], 97 AD3d at 866). Notably, diligent
efforts "to encourage the father to perform the acts" required by
the statute are not mandated (Domestic Relations Law § 111 [1]
[d]).

      Here, the record does not reflect that respondent provided
any financial support for his daughter and, contrary to
respondent's assertion, we find his proffered excuses in this
regard to be woefully inadequate. Although respondent indeed was
incarcerated for a large portion of the time between October 2010
and April 2014, the case law makes clear that, "absent a showing
of insufficient income or resources, the fact that respondent was
in prison does not relieve him from his responsibility to provide
some financial support to the extent of his ability" (Matter of
Dakiem M. [Demetrius O.–Dakiem N.], 94 AD3d at 1363; see Matter
of Maurice N. [Carlos O.], 128 AD3d 1117, 1118 [2015]; Matter of
John Q. v Erica R., 104 AD3d at 1099). Similarly, neither the
absence of a court order directing respondent to pay child
support nor his apparent lack of postrelease employment is
sufficient to excuse his obligation under the statute –
particularly where he otherwise fails to prove "that he was
unable to pay anything to support his child" (Matter of John Q. v
Erica R., 104 AD3d at 1099 [emphasis added]).4 Accordingly,
Family Court correctly concluded that respondent failed to
satisfy the support aspect of Domestic Relations Law § 111 (1)
(d).

      We reach a similar conclusion as to the contact element of
the statute. Respondent testified that, after his paternity was
established, he participated in supervised weekly visits with the
child from the time that she was six months old until some point
after her first birthday. Respondent admitted, however, that he


     4
        Respondent testified at the hearing that he was receiving
Supplemental Security Income and Social Security Disability
benefits, although it is unclear when such benefits commenced.
                              -4-                519438

last saw his child on October 23, 2010 – shortly before he
entered state prison – and the aunt testified that she never
received any cards or letters for the child from respondent.
Although respondent insisted that he could not contact
petitioners or the child because he lost the aunt's phone number,
did not have petitioners' address and the local social services
agency refused to provide him with such information, the record
reflects that respondent failed to make even a minimal effort to
locate petitioners by, for example, looking in the local phone
book or asking a member of his family to conduct an Internet
search (see Matter of John Q. v Erica R., 104 AD3d at 1099;
Matter of Asia ZZ. [Henry A.–Jason V.], 97 AD3d at 866).
Similarly, while respondent testified that the local social
services agency informed him – prior to his October 2010
incarceration – that he would need to file a petition in Family
Court in order to obtain visitation with or information regarding
his child, respondent admitted that he did not do so until
October 2013. Respondent's "incarceration did not 'excuse his
failure to maintain substantial and continuous or repeated
contact with [his] child'" (Matter of Dakiem M. [Demetrius
O.–Dakiem N.], 94 AD3d at 1363, quoting Matter of Keyanna AA., 35
AD3d 1079, 1081 [2006]; see Matter of Kevina G. [Kevin C.], 124
AD3d 889, 890 [2015], lv denied 25 NY3d 904 [2015]; Matter of
John Q. v Erica R., 104 AD3d at 1099), and the record as a whole
fails to reveal any discernible reason for respondent's
shortcomings in this regard. Simply put, inasmuch as respondent
never paid child support, did not participate in visits with his
child after October 2010, waited until October 2013 to file a
petition seeking visitation and/or otherwise failed to maintain
contact with the child through cards, letters or gifts, we find
ample support for the conclusion that respondent did not satisfy
the statutory criteria. Hence, respondent's consent to the
proposed adoption was not required (see Matter of Angelina K.
[Eliza W.–Michael K.], 105 AD3d 1310, 1311-1312 [2015], lv denied
21 NY3d 860 [2013]; Matter of John O. v Erica R., 104 AD3d at
1098-1099; Matter of Dakiem M. [Demetrius O.–Dakiem N.], 94 AD3d
at 1363-1364; Matter of Ethan S. [Tarra C.–Jason S.], 85 AD3d
1599, 1599-1560 [2011], lv denied 17 NY3d 711 [2011]).

      As a final matter, we find no merit to respondent's claim
that he received ineffective assistance of counsel – particularly
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with respect to counsel's asserted failure to elicit proof of
respondent's alleged indigency. Respondent's oldest daughter
testified that she "brought [respondent] money at jail," and
respondent testified that he was receiving certain government
benefits – although, as noted previously, the record is silent as
to when such benefits commenced. Under these circumstances,
trial counsel, despite the statutory requirements, may well have
made a tactical decision not to dwell upon respondent's finances
– particularly if respondent had no viable explanation for his
failure to provide even a meager level of support (see e.g.
Matter of Robinson v Bick, 123 AD3d 1242, 1242-1243 [2014];
Matter of Elizabeth HH. v Richard II., 75 AD3d 670, 670-671
[2010]; Matter of Hurlburt v Behr, 70 AD3d 1266, 1267-1268
[2010], lv dismissed 15 NY3d 943 [2010]). "[I]t is not the role
of this Court to second-guess counsel's trial strategy or
tactics" (Matter of Christopher W., 42 AD3d 692, 693 [2007]),
and, even assuming that counsel's performance on this point was
deficient, we cannot say, based upon our review of the record as
a whole, that respondent was deprived of meaningful
representation. Notably, trial counsel elicited detailed
testimony from respondent as to the latter's explanation for not
participating in, seeking visitation with or otherwise
maintaining contact with his child during the relevant time
period, cross-examined petitioners' witnesses and made
appropriate objections throughout the course of the hearing (see
id. at 693-694). Respondent's remaining arguments, to the extent
not specifically addressed, have been examined and found to be
lacking in merit.

     McCarthy, J.P., Lynch and Devine, JJ., concur.
                        -6-                  519438

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
