                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 22, 2015                   519744
________________________________

In the Matter of EMMA K.,
   an Infant.

WENDY I. et al.,
                    Respondents;

MATTHEW K.,
                    Appellant.

(Proceeding No. 1.)
________________________________            MEMORANDUM AND ORDER

In the Matter of LUCAS K.,
   an Infant.

WENDY I. et al.,
                    Respondents;

MATTHEW K.,
                    Appellant.

(Proceeding No. 2.)
________________________________


Calendar Date:   September 8, 2015

Before:   McCarthy, J.P., Egan Jr., Rose and Clark, JJ.

                             __________


     Teresa C. Mulliken, Harpersfield, for appellant.

      Harlem & Jervis, Oneonta (Eric V. Jervis of counsel), for
respondents.

      Rosemarie Richards, Gilbertsville, attorney for the
children.

                             __________
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Rose, J.

      Appeal from an order of the Surrogate's Court of Delaware
County (Becker, S.), entered July 17, 2014, which granted
petitioners' applications, in two proceedings pursuant to
Domestic Relations Law article 7, to determine that the consent
of respondent was not required for the adoption of the children.

      Petitioner Wendy I. (hereinafter the mother) and respondent
Matthew K. (hereinafter the father) are former spouses and the
biological parents of two children, Lucas K. (born in 2002) and
Emma K. (born in 2004). The mother and the father separated in
2008 and obtained a judgment of divorce in 2010. In 2011, the
mother married petitioner Terrance J. (hereinafter the
stepfather) and, in 2014, petitioners commenced these proceedings
seeking to adopt the children without the father's consent on the
ground that the father had abandoned the children for more than
six months. After a hearing, at which both petitioners and the
father testified, Surrogate's Court granted petitioners'
applications, prompting this appeal by the father.

      We affirm. Where, as here, a nonparent seeks to adopt
children born in wedlock, the consent of the children's
biological parents ordinarily is required (see Domestic Relations
Law § 111 [1] [b]). However, the need for parental consent is
obviated when the petitioners "show by clear and convincing
evidence that the [respondent parent] had demonstrated an intent
to forgo [his or] her parental or custodial rights and
obligations, as revealed by [the] failure to visit or communicate
with the child[ren] or the legal custodian for a six-month
period, despite being able to do so" (Matter of Zachary N. [Paul
N.–Hope N.], 77 AD3d 1116, 1117 [2010]; see Matter of Lori QQ. v
Jason OO., 118 AD3d 1084, 1084 [2014], lv denied 23 NY3d 909
[2014]; see also Domestic Relations Law § 111 [2] [a]). Absent
evidence to the contrary, a parent's ability to engage in such
visitation and/or communication is presumed (see Domestic
Relations Law § 111 [6] [a]; Matter of Morgaine JJ., 31 AD3d 931,
932 [2006]).

     At the hearing, the mother testified that the father had
                              -3-                519744

not seen the children since 2009 and had not spoken to them by
telephone since 2010. While the father testified that he valued
and loved his children, he did not dispute the mother's
chronology of his absence from their lives, and he fully
acknowledged that he had made no effort to contact them or the
mother since 2012. Despite the father's professed feelings for
the children, his "[s]ubjective intent, unsupported by acts, is
insufficient to avoid a finding of abandonment" (Matter of Mia
II. [Theresa JJ.–Michael II.], 75 AD3d 722, 724 [2010], lv denied
15 NY3d 710 [2010] [internal quotation marks and citation
omitted]; see Domestic Relations Law § 111 [6] [c]).

      To rebut "the presumption of abandonment that normally
arises in such circumstances" (Matter of Anthony S., 291 AD2d
702, 703 [2002], lv denied 98 NY2d 609 [2002]; see Matter of Lori
QQ. v Jason OO., 118 AD3d at 1084), the father claims that he was
unable to visit or contact his children due to his ongoing
struggles with depression and alcoholism, for which he
intermittently sought treatment between 2009 and 2012. This
argument fails, however, because he offered no proof that the
programs in which he participated prevented or even discouraged
contact with the children (compare Matter of Jonna H., 252 AD2d
839, 840 [1998], with Matter of Ethan S. [Tarra C.–Jason S.], 85
AD3d 1599, 1600 [2011], lv denied 17 NY3d 711 [2011]). A similar
lack of proof requires us to reject the father's alternative
argument that he avoided his children because the mother
intimidated him. We note that, had he genuinely felt that the
mother was in some way interfering with his access to the
children, he could have sought the aid of Family Court (see
Matter of Mia II. [Theresa JJ.–Michael II.], 75 AD3d at 724;
Matter of Shauna B., 305 AD2d 737, 738 [2003]). In our view, the
father's conduct clearly and convincingly evinced an intent to
forgo his parental rights and obligations.

     McCarthy, J.P., Egan Jr. and Clark, JJ., concur.
                        -4-                  519744

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
