                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 7, 2016                   518421
________________________________

In the Matter of HAYDEN II.,
   an Infant.

RENEE II.,                                  MEMORANDUM AND ORDER
                    Respondent;

DEVAN JJ.,
                    Appellant.
________________________________


Calendar Date:   November 20, 2015

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

                             __________


      Robert W. Linville, Public Defender, Hudson (Jessica Howser
of counsel), for appellant.

     Cynthia Feathers, Glens Falls, for respondent.

     Alexander W. Bloomstein, Hillsdale, attorney for the child.

                             __________


Egan Jr., J.

      Appeal from an order of the Family Court of Columbia County
(Nichols, J.), entered April 30, 2013, which granted petitioner's
application, in a proceeding pursuant to Domestic Relations Law
article 7, to determine that the consent of respondent was not
required for the adoption of Hayden II.

      Respondent and Matthew II. (hereinafter the father) are the
biological parents of a child (born in 2008). Due to
respondent's substance abuse, in July 2011 the child began
residing with her father and petitioner, the father's significant
other at the time. In January 2012, the child was adjudicated to
                               -2-                518421

be neglected (based upon certain admissions made by respondent),
and respondent entered into substance abuse treatment.
Respondent subsequently absconded from the facility where she was
being treated, as a result of which she was incarcerated in the
local jail from (approximately) September 27, 2012 to February
22, 2013.

      Shortly thereafter, petitioner and the father, who have two
children together, married and, on March 5, 2013, petitioner
commenced this proceeding seeking to adopt the child. In so
doing, petitioner alleged that respondent had abandoned the child
and, therefore, respondent's consent was not required. Following
a hearing, Family Court agreed and, after further proceedings,
granted the underlying petition. This appeal by respondent
ensued.1

      Preliminarily, respondent purports to appeal from Family
Court's December 2013 bench decision – from which no appeal lies
(see Render v Gizzo, 129 AD3d 1488, 1489 [2015]; Matter of
Alysheionna HH. [Tara II.], 101 AD3d 1413, 1414 n 2 [2012], lv
denied 20 NY3d 861 [2013]). That said, we are in receipt of
Family Court's January 2014 order approving the adoption, and the
parties have briefed the merits of the appeal. Accordingly, we
will deem respondent's otherwise premature notice of appeal to be
valid (see Matter of Isabella TT. [Dalton C.], 127 AD3d 1330,
1331-1332 [2015], lv denied 25 NY3d 913 [2015]). Additionally,
to the extent that respondent contends that the underlying
petition should have been dismissed for failing to comply with
the service requirements set forth in CPLR 306-b, after reviewing
Domestic Relations Law § 111 and giving due consideration to the
legislative goals and policies underlying the statutory
provisions at issue, we are satisfied that Family Court properly
declined to dismiss the petition upon this ground (cf. Matter of
Marilyn S., 233 AD2d 155, 156 [1996]).

      Turning to the merits, "[c]onsent to adoption is not
required of a parent who evinces an intent to forego his or her


     1
        Respondent's motion for a stay pending appeal was denied
by a Justice of this Court.
                              -3-                518421

parental or custodial rights and obligations as manifested by his
or her failure for a period of six months to visit the child and
communicate with the child or person having legal custody of the
child, although able to do so" (Matter of Lori QQ. v Jason OO.,
118 AD3d 1084, 1084 [2014] [internal quotation marks and
citations omitted; emphasis added], lv denied 23 NY3d 909 [2014];
see Matter of Zachary N. [Paul N.–Hope N.], 77 AD3d 1116, 1117
[2010]). "Once the petition[ing party] makes such a showing by
clear and convincing evidence, the burden shifts to the parent to
demonstrate sufficient contact or an inability to engage in such
contact" (Matter of Lori QQ. v Jason OO., 118 AD3d at 1084
[internal quotation marks and citations omitted]; see Matter of
Nathon O., 55 AD3d 995, 996 [2008], lv denied 11 NY3d 714
[2008]). Notably, the mere fact that a parent is incarcerated
does not relieve him or her of the "obligation to make contact
and to support the child" (Matter of Maurice N. [Carlos O.], 128
AD3d 1117, 1118 [2015]), and a parent's "[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] [internal quotation marks and citation
omitted], lv denied 15 NY3d 710 [2010]; accord Matter of Emma K.
[Wendy I.–Matthew K.], 132 AD3d 1111, 1112 [2015]).

      Here, petitioner, the father and a caseworker from the
local department of social services each testified that, during
the relevant six-month period, respondent failed to inquire – via
either mail or telephone – as to the child's well-being.
Petitioner and the father further testified that, during this
same period of time, they did not receive any cards, letters or
gifts on behalf of the child, nor did respondent provide any
financial support. Such testimony, in our view, was more than
sufficient to discharge petitioner's initial burden in this
proceeding, thereby shifting the burden to respondent to
establish either sufficient contact with the child or an
inability to do so.

      In opposition, respondent conceded that she "did not have
any contact with anybody" regarding the child during the six
months at issue – claiming instead that she was precluded from
contacting the child due to an outstanding order of protection,
that she lacked the financial resources to support the child and
                              -4-                518421

that she was unable to place telephone calls while she was
incarcerated. Such assertions, however, fall short of adequately
explaining her failure to meet her parental obligations by, at
the very least, sending a letter to the father and inquiring as
to the child's welfare. On this point, although there indeed was
a no-contact order of protection in place during the relevant
time period, which precluded respondent from contacting the child
directly, nothing in the order of protection prevented her from
contacting either the father or the child's caseworker.
Similarly, even accepting respondent's claims of indigence and
her assertion that she was not permitted to place phone calls
while she was incarcerated, she acknowledged that she had access
to a pen and paper while she was in jail, which she admittedly
did not utilize to inquire as to her child's well-being.
Additionally, although respondent testified that she had contact
with and/or was receiving financial support from family members
and friends before, during and after her incarceration, she
conceded that she never asked any of these individuals for so
much as a stamp in order to facilitate an inquiry regarding her
child. Under these circumstances, we have no quarrel with Family
Court's finding that respondent abandoned her child and,
therefore, her consent to the adoption was not required. Indeed,
even if we were to expand our inquiry beyond the six-month period
considered by Family Court, respondent's proffered proof would –
at best – demonstrate "a flicker of interest" in her child
(Matter of Amy SS, 64 NY2d 788, 790 [1985] [internal quotation
marks and citation omitted]), which is insufficient to defeat the
underlying petition. Respondent's remaining arguments, to the
extent not specifically addressed, have been examined and found
to be lacking in merit.

     Lahtinen, J.P., McCarthy, Lynch and Clark, JJ., concur.
                        -5-                  518421

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
