        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

944
CAF 14-01867
PRESENT: WHALEN, P.J., CENTRA, CARNI, CURRAN, AND TROUTMAN, JJ.


IN THE MATTER OF NICKIE M.A. AND LEONEL A.
------------------------------------------
ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,       MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

PABLO F., RESPONDENT-APPELLANT.
(APPEAL NO. 1.)


EVELYNE A. O’SULLIVAN, EAST AMHERST, FOR RESPONDENT-APPELLANT.

JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER-RESPONDENT.

DAVID C. SCHOPP, ATTORNEY FOR THE CHILDREN, THE LEGAL AID BUREAU OF
BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL).

WILLIAM D. BRODERICK, JR., ELMA, FOR INTERVENING FOSTER PARENTS.


     Appeal from an order of the Family Court, Erie County (Lisa Bloch
Rodwin, J.), entered October 8, 2014 in a proceeding pursuant to
Family Court Act article 10. The order, inter alia, determined
respondent to be, at most, a notice father.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In appeal Nos. 1 and 2, respondent, the putative
father of the subject children, contends that Family Court erred in
determining, following a hearing, that he is not a father whose
consent to the adoption of the respective subject children was
required pursuant to Domestic Relations Law § 111. We reject that
contention. Section 111 (1) (d) provides that a child born to
unmarried parents may be adopted without the consent of the child’s
father unless the father shows that he “maintained substantial and
continuous or repeated contact with the child as manifested by: (i)
the payment by the father toward the support of the child . . . , and
either (ii) the father’s visiting the child at least monthly when
physically and financially able to do so . . . , or (iii) the father’s
regular communication with the child or with the person or agency
having the care or custody of the child, when physically and
financially unable to visit the child or prevented from doing so.”
Here, respondent testified that, at the time of the hearing, he had
been incarcerated for more than two years and had provided the
children with no financial support during that time. He further
testified that he had not communicated with the children for at least
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                                                         CAF 14-01867

seven months prior to the hearing.

     Contrary to respondent’s contention, he was not relieved of his
responsibility to provide financial support while he was incarcerated
absent a showing of insufficient income or resources (see Matter of
Bella FF. [Margaret GG.—James HH.], 130 AD3d 1187, 1188), and he “was
not relieved of the responsibility to communicate with the child[ren]
. . . during the period that [he] was incarcerated” (Matter of Antonio
J.M., 32 AD3d 1180, 1181). Respondent’s testimony that he sent
letters to the caseworker regarding the children was contradicted by
the testimony of the caseworker, and we give great deference to the
court’s determination that the caseworker’s testimony was credible
(see Matter of Makia R.J. [Michael A.J.], 128 AD3d 1540, 1540-1541).
Thus, we conclude that the court properly determined that respondent
“was a mere notice father whose consent was not required for the
adoption of the subject children” (id. at 1540; see Matter of Ethan S.
[Tarra C.—Jason S.], 85 AD3d 1599, 1599-1600, lv denied 17 NY3d 711;
Matter of Jaleel E.F. [Cheryl S.—Ernest F.], 81 AD3d 1302, 1303, lv
dismissed 17 NY3d 871).

      Finally, to the extent that respondent contends that the court
erred in excluding certain transcripts from the record on appeal, we
note that he “failed to appeal from th[e] order [settling the record],
and we are thus unable to address any issue related to the propriety
of that order” (Matter of Caughill v Caughill, 124 AD3d 1345, 1347;
cf. Kai Lin v Strong Health [appeal No. 1], 82 AD3d 1585, 1586, lv
dismissed in part and denied in part 17 NY3d 899, rearg denied 18 NY3d
878).




Entered:   November 10, 2016                   Frances E. Cafarell
                                               Clerk of the Court
