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

620
CAF 13-02169
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF MAKIA R.J. AND NAKIA M.J.
------------------------------------------
ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,       MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

MICHAEL A.J., RESPONDENT-APPELLANT.


JENNIFER M. LORENZ, LANCASTER, 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).


     Appeal from an order of the Family Court, Erie County (Lisa Bloch
Rodwin, J.), entered November 12, 2013. The order determined that
respondent is not a father whose consent to the adoption of the
subject children was required.

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

     Memorandum: Respondent, the biological father of the subject
children, contends that Family Court erred in determining, following
an evidentiary hearing, that he is not a father whose consent to the
adoption of the subject children was required pursuant to Domestic
Relations Law § 111. We reject that contention. Section 111 (1) (d)
provides that a child born out of wedlock may be adopted without the
consent of the child’s biological 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” (emphasis added). Here, it is undisputed that
respondent paid only $99.99 in child support since July 2003, and
nothing between 2006-2012, notwithstanding a prior order directing him
to pay at least $25.00 per month. Thus, regardless of whether
respondent visited the child monthly or regularly communicated with
the child, the court properly determined that he was a mere notice
father whose consent was not required for the adoption of the subject
children (see Matter of Jules S. [Julio S.], 96 AD3d 448, 449, lv
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                                                         CAF 13-02169

denied 19 NY3d 814; see generally Social Services Law § 384-c).

     In any event, giving great deference to the court’s credibility
determinations, as we must (see Matter of Kennedie M. [Douglas M.], 89
AD3d 1544, 1544-1545, lv denied 18 NY3d 808; see also Matter of
Angelina K. [Eliza W.–Michael K.], 105 AD3d 1310, 1312, lv denied 21
NY3d 860), we conclude that the court’s further determination that
respondent failed to visit or communicate with the child regularly is
supported by the requisite clear and convincing evidence (see Matter
of Kevina G. [Kevin C.], 124 AD3d 889, 890; Matter of Zachary N. [Paul
N.–Hope N.], 77 AD3d 1116, 1117).




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
