                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: February 18, 2016                     521248
________________________________

In the Matter of BLAKE I.,
   an Infant.

RICHARD H. et al.,
                      Respondents;            MEMORANDUM AND ORDER

NEIMIAH I.,
                    Appellant.
________________________________


Calendar Date:   January 12, 2016

Before:   Peters, P.J., McCarthy, Rose and Lynch, JJ.

                               __________


     Robert N. Gregor, Lake George, for appellant.

      Matte & Nenninger, PC, Glens Falls (Jeffrey C. Matte of
counsel), for respondents.

                               __________


Peters, P.J.

      Appeal from an order of the Family Court of Washington
County (Wait, J.), entered June 11, 2015, which granted
petitioners' 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.

      Respondent (hereinafter the father) and petitioner Kelsey
H. (hereinafter the mother), who were never married, are the
biological parents of a son (born in 2008). In 2009, the mother
was awarded sole legal and physical custody of the child and the
father was given 10 minutes of biweekly parenting time. The
mother married petitioner Richard H. (hereinafter the stepfather)
in 2011 and the two have lived together continuously with the
                               -2-                521248

child since that time. The father was released from prison in
August 20131 and was reincarcerated in March 2014 upon his
conviction of a drug felony, for which he received a sentence of
five years in prison. In January 2015, petitioners commenced
this proceeding seeking the stepfather's adoption of the child.
Following a hearing, Family Court determined that the father's
consent to the adoption was not required pursuant to Domestic
Relations Law § 111 (2) (a) because he evinced an intent to
abandon his parental rights. The father appeals.

      We affirm, albeit on a different ground. "[T]here are two
steps in determining whether the biological father's consent may
be dispensed with in a proceeding seeking approval of the
adoption of [a] child" over six months old who was born out of
wedlock (Matter of Anthony S., 291 AD2d 702, 702 [2002], lv
denied 98 NY2d 609 [2002]; see Matter of Andrew Peter H.T., 64
NY2d 1090, 1091 [1985]). The threshold inquiry is whether the
biological father has established a right to consent to the
adoption by "maintain[ing] a substantial and continuous or
repeated relationship with the child by means of financial
support according to the father's means and either monthly
visitation, when physically and financially able to do so, or
regular communication with the child or the child's caregiver"
(Matter of Dakiem M. [Demetrius O.—Dakiem N.], 94 AD3d 1362, 1362
[2012], lv denied 19 NY3d 807 [2012] [internal quotation marks,
brackets and citation omitted]; see Domestic Relations Law § 111
[1] [d]; Matter of Andrew Peter H. T., 64 NY2d at 1091; Matter of
Ethan S. [Tarra C.–Jason S.], 85 AD3d 1599, 1599 [2011], lv
denied 17 NY3d 711 [2011]). "Only after the [biological] father
establishes his right of consent to the adoption, by satisfying
both the support and communication provisions of the statute,
does the court proceed to determine whether he has forfeited that
right by evincing an intent to forego his . . . parental . . .
rights and obligations" within the meaning of Domestic Relations
Law § 111 (2) (a) (Matter of Andrew Peter H. T., 64 NY2d at 1091
[internal quotation marks and citation omitted]; accord Matter of
John Q. v Erica R., 104 AD3d 1097, 1098 [2013]; see Matter of


     1
        The record does not disclose when this term of
incarceration began.
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Asia ZZ. [Henry A.—Jason V.], 97 AD3d 865, 866 [2012]; Matter of
Dakiem M. [Demetrius O.—Dakiem N.], 94 AD3d at 1362).

      Here, Family Court did not follow the two-step process set
forth above, instead proceeding directly to the second inquiry
under Domestic Relations Law § 111 (2) (a) and concluding that
the father forfeited his right to consent to the adoption by
abandoning his parental rights. While Family Court's finding in
that regard is amply supported by the record, particularly after
due deference is given to its credibility determinations
resolving the conflicting testimony in favor of the mother (see
Matter of John Q. v Erica R., 104 AD3d at 1099; Matter of Asia
ZZ. [Henry A.—Jason V.], 97 AD3d at 866), the court should have
first made a threshold finding as to whether the father
established his right to consent to the adoption through
satisfaction of the support and communication criteria set forth
in Domestic Relations Law § 111 (1) (d). Upon our independent
review of the record, we conclude that the father did not.

      The uncontroverted testimony adduced at the hearing
established that the father has never provided any financial
support for his son. Although the father was incarcerated for a
significant portion of the two-year period preceding the hearing,
he offered no proof that he had insufficient income or resources
to provide some measure of financial support either during that
time or when he was not in prison (see Matter of Bella FF.
[Margaret GG.–James HH.], 130 AD3d 1187, 1188 [2015]; Matter of
Maurice N. [Carlos O.], 128 AD3d 1117, 1118 [2015]; Matter of
John Q. v Erica R., 104 AD3d at 1099). Further, the absence of a
court order directing the father to pay child support does not
excuse his failure to provide any financial support (see Matter
of Bella FF. [Margaret GG.–James HH.], 130 AD3d at 1188; Matter
of John Q. v Erica R., 104 AD3d at 1099). As the father failed
to satisfy the support aspect of Domestic Relations Law § 111 (1)
(d),2 his consent to the adoption was not required under that


    2
        Because the support and communication provisions of
Domestic Relations Law § 111 (1) (d) must both be satisfied to
require consent to an adoption (see Matter of Bella FF. [Margaret
GG.–James HH.], 130 AD3d at 1187-1188; Matter of Asia ZZ. [Henry
                              -4-                  521248

statutory provision.

     McCarthy, Rose and Lynch, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court




A.–Jason V.], 97 AD3d at 867 n), we need not address the
communication provision.
