In re Seasia D.

— 879 — In an adoption proceeding pursuant to Domestic Relations Law article 7, the prospective adoptive parents, the petitioners Mr. Anonymous and Mrs. Anonymous, the petitioner Family Focus Adoption Services, and the nonparty birth mother Tenisha D., separately appeal from an order of the Family Court, Queens County (DePhillips, J.), dated June 30, 2006, which, after a hearing, in effect, denied the petition and dismissed the proceeding. Ordered that the order is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Queens County, to set a date for the production of the child by the prospective adoptive parents, for a determination of where the subject child shall reside pending resolution of the biological father’s custody proceeding, and for a determination of the biological father’s custody proceeding. In the instant case, the Family Court denied the adoption petition on the grounds that the biological father was a “consent father,” that is, one whose consent to the adoption is mandated by statutory and due process requirements, who did not consent to the adoption, and that the extrajudicial consent of the birth mother was invalid. The prospective adoptive parents and their private adoption agency argue on appeal that the biological father, by his conduct, failed to qualify as a “consent father,” and that the adoption petition thus should have been granted without the necessity of obtaining his consent. They further argue that, to the extent that the birth mother’s extrajudicial consent to the adoption was invalid, any irregularity could and would be easily rectified by her execution of a new, valid consent. The Law Guardian for the birth mother, who was 14 years old when the subject child was born, similarly contends that although her extrajudicial consent to the adoption was in fact invalid, the biological father’s consent was not required and that she is prepared to execute a new consent providing for an open adoption. The Law Guardian for the child argues that the Family Court properly determined that the biological father is a “consent father.” We note that the birth mother was a foster — 880 — child who was herself adopted shortly before she and the biological father learned that she was pregnant. On the question of whether the biological father’s consent was required as a condition to the adoption, Domestic Relations Law § 111 (1) (e) states that if the child is under six months old at the time of placement, a nonmarital father has a right to consent if he lived with the mother for six months immediately preceding the placement of the child for adoption, held himself out as the father during that period, and paid a reasonable sum in accordance with his means for the expenses of the birth. In Matter of Raquel Marie X. (76 NY2d 387 [1990], cert denied sub nom. Robert C. v Miguel T., 498 US 984 [1990]), the Court of Appeals held that the “living together” requirement was unconstitutional, declaring the provisions nonseverable and therefore unconstitutional in their entirety. Pending the Legislature’s formulation of a new standard (which the Legislature has yet to accomplish) the Court of Appeals set forth judicially-created interim criteria, to wit, a willingness to assume full custody in the six months prior to the placement of the child for adoption, evidenced by payment of pregnancy and birth expenses, and a public acknowledgment of paternity within the six months immediately preceding the child’s placement for adoption (see Matter of Robert O. v Russell K., 80 NY2d 254 [1992]). In the instant case, the evidence at the hearing established that, during the relevant six-month period, the biological father publicly acknowledged paternity and exhibited a willingness to assume full parental responsibilities. However, those efforts were rebuffed by the birth mother’s family. We note that certain hearsay evidence with respect to this issue was admitted by the Family Court not for the truth of the statements, but to “know the circumstances” to which the biological father was responding. Contrary to the appellants’ contentions, this evidence was admissible for that purpose and to show state of mind (see Matter of Marino S., 100 NY2d 361, 372 [2003], cert denied sub nom. Marino S. v Angel Guardian Children & Family Servs., 540 US 1059 [2003]; Matter of Doreen J. v Thomas John F., 101 AD2d 862 [1984]). The biological father first learned of the birth mother’s pregnancy in November 2003, when she was already five months pregnant, and he immediately believed that the child was his. The following Sunday, the birth mother’s family and the biological father’s family met at the home of the biological father’s aunt. According to the biological father, the purpose of the meeting was to “clarify that I did not rape” the birth mother and because “I wanted to see her; she was pregnant.” — 881 — The birth mother’s adoptive mother (hereinafter the maternal grandmother) was deceased at the time of the hearing. However, at the hearing, the biological father’s aunt testified that the maternal grandmother said she did not believe that the biological father forcibly raped the birth mother. The birth mother’s adult adoptive sister (hereinafter the aunt) confirmed that, at the meeting, the maternal grandmother did not believe the allegations of forcible rape. Since the biological father was a minor at the time he had sexual relations with the birth mother, his conduct could be classified as sexual misconduct on the ground that the birth mother was under 17 years old (see Penal Law § 130.20), but it could not be classified as statutory rape (see Penal Law §§ 130.25, 130.30). Accordingly, contrary to the contention of our dissenting colleague, there is no basis to conclude that the biological father’s concerns were more penal than paternal. At that meeting, the paternal grandmother, speaking on behalf of the biological father’s family, asked if anything could be done for the child. The maternal grandmother’s response was that something could be done if the biological father or the paternal grandmother “could find her.” Two days later, the paternal grandmother called the aunt and offered to go shopping and buy maternity clothes. The aunt replied that “Mom [referring to the maternal grandmother] does not want anything from you.” Thereafter, the paternal grandmother called the aunt every two or three days at the biological father’s request, and asked to speak to the birth mother. The fact that the biological father involved his own mother in the process militates in his favor since it demonstrated a public acknowledgment of paternity and an intent to secure custody with her help (cf. Matter of Michael, 272 AD2d 618 [2000]). The evidence in the record establishes that the paternal grandmother acted at her son’s repeated requests. The biological father asked the paternal grandmother to call the aunt because the two women had a relationship with each other which was “really close.” He expected that if his mother called, she would be permitted to speak to the birth mother, a situation which would then allow him to “take the phone” and speak to the birth mother immediately thereafter. However, the birth mother’s family stopped taking telephone calls. The paternal grandmother tried calling from a third party’s telephone, but once the aunt realized who was calling, she claimed she “couldn’t talk,” promised to call back, but never did. The birth mother confirmed that the maternal grandmother prohibited her from contacting the biological father. — 882 — The aunt testified that during the period when the aunt was still conversing with the paternal grandmother, the birth mother apparently had not decided what to do with respect to the pregnancy. The aunt claimed that she had taken the birth mother to an abortion clinic and learned that a late abortion would require a two-day procedure which was too difficult for a girl as young as the birth mother to bear. The aunt testified that no decision could be made as to the pregnancy because it was “up to” the maternal grandmother. The aunt’s testimony was corroborated by the birth mother’s testimony that the maternal grandmother threatened to “put me out [of] the house ‘cause she don’t want no teenager girl pregnant in her house.” The birth mother gave this threat credence, since she was a foster child recently adopted by the maternal grandmother and her biological sister had been returned to foster care by the maternal grandmother. The birth mother confirmed that she went to an abortion clinic. Thereafter, she went to an adoption agency. It is not disputed that the adoption agency was not contacted until January 2004, and the birth mother’s first appointment with the adoption agency was in the third week of January 2004. During this period, the biological father was unable to ascertain where the birth mother lived. He went to the birth mother’s church in hopes of seeing her there, but her family was keeping her home. The paternal grandmother called a list of child welfare agencies in an attempt to determine where the birth mother lived and, in fact, reached a caseworker from Seamen’s Society for Children and Families, which had handled the adoption of the birth mother. The caseworker provided no information. The biological father asked the birth mother’s family if he could be present at the birth of the child, but was told that he would be arrested for statutory rape if he attempted to do so. The biological father testified that he attempted to commence a paternity proceeding in the Family Court, Richmond County, but was told to wait until he knew that the child was born. This was incorrect, since Family Court Act § 517 authorizes the commencement of a paternity proceeding during the mother’s pregnancy. Moreover, the biological father was unaware of the Putative Father Registry maintained by the New York State Department of Social Services. The biological father testified that if he knew where the birth mother was giving birth, he would have gone, despite the threat that he would be arrested. However, he was not notified of the adoption until nine days after the child’s birth, when the aunt — 883 — called the paternal grandmother and told her that she could “stop harassing” the birth mother’s family because the baby had been born, and “we gave it away.” At that juncture, the paternal grandmother went through old church papers and found an envelope with an unfamiliar address on it which she suspected might be the birth mother’s address. The biological father, the paternal grandmother, and a cousin went to that address and confirmed that it was the birth mother’s address, when they saw the maternal grandmother’s car in front of the house. The biological father promptly commenced a paternity proceeding and a custody proceeding less than one month after the child’s birth. Although the paternity proceeding and the custody proceeding were commenced after the child was placed for adoption, the biological father’s conduct prior to the child’s placement for adoption, which included a public acknowledgment of paternity, efforts to provide support which were rebuffed, and efforts to witness the birth which were rebuffed, were sufficient to establish that his consent is required for the placement of the child for adoption (see Matter of Kiran Chandini S., 166 AD2d 599 [1990]; see also Matter of Matthew D., 31 AD3d 1103 [2006]). The father’s efforts were not so much rebuffed by threats— since it became apparent that threats would not work—but by the efforts of the birth mother’s family to keep her plans a secret and to insure that the biological father played no parental role whatsoever. Since he was not informed of the birth mother’s plans or the child’s birth until after the child was surrendered for adoption, his failure to immediately assume custody cannot be considered a waiver (see Matter of Kiran Chandini S., 166 AD2d 599 [1990]). Since the birth mother’s medical expenses were paid by Medicaid, the biological father’s failure to contribute to those expenses is thus not determinative (see Matter of Kiran Chandini S., 166 AD2d 599 [1990]). In addition, the relocation of the biological father’s family to Maryland on January 30, 2004, during the birth mother’s pregnancy, cannot be deemed to constitute a waiver. The birth mother’s family knew about the planned move before they knew about the birth mother’s pregnancy. The biological father and the paternal grandmother discussed the move with the birth mother’s family and left their forwarding address, the addresses and telephone numbers of other close relations in both Maryland and New York, and the paternal grandmother’s mobile telephone number. The aunt acknowledged that she had the paternal grandmother’s mobile telephone number. A mutual — 884 — friend from the biological parents’ church also delivered this information to the birth mother, and told her “Don’t forget us.” The birth mother confirmed that she received this information. The friend was rebuked by the maternal grandmother for providing that information to a minor without parental permission. The attempts to reach the birth mother’s family by telephone continued after the move to Maryland, to no avail. This case is thus diametrically different from Matter of Baby Boy C. (13 AD3d 619, 620 [2004]), cited by our dissenting colleague, where a biological father “abandoned” the mother by moving to North Carolina during the birth mother’s pregnancy without informing her of his whereabouts. Our dissenting colleague, while acknowledging that the biological father’s exercise of supervised visitation after he was adjudicated the legal father in October 2004 is not relevant to our determination of whether he is a “consent father,” nevertheless cites testimony by the prospective adoptive father that the supervised visits by the biological father were “at best, unreliable and sporadic . . . indicating a lack of any serious interest in forming a full father-child relationship.” The record with respect to supervised visits is at best incomplete, since there has been no hearing with respect to the best interest of the child. However, it is clear that—although the visits are professionally supervised —one of the prospective adoptive parents insisted on being present and would not permit the father to take the child to a more appropriate setting, such as a nearby park. Further, during the periods in which the biological father was in New York for the hearing, the prospective adoptive parents canceled consecutive scheduled visits. Therefore, the biological father’s numerical record of attendance at scheduled visits is not a basis to conclude that he lacks any serious interest in forming a parent-child relationship with the child. Thus, we reject the appellants’ contention that the biological father, by his conduct, forfeited his status as a “consent father.” Further, we agree with the Family Court that the extrajudicial surrender by the birth mother, who was 14 years old at the time, was invalid since she was acting under the duress imposed upon her by the maternal grandmother, who threatened to return her to foster care if she did not execute the surrender. Moreover, she did not have independent counsel, and her wishes for an open adoption were not explicitly provided for (see Social Services Law § 384 [5]; Matter of Baby Boy L., 144 AD2d 674 [1988], cert denied sub nom. Laurence v Anonymous, 493 US 918 [1989]; Matter of Male L., 125 Misc 2d 420 [1984]). — 885 — Further, we note that the Legislature’s failure to amend Domestic Relations Law § 111 (1) (e), which was declared unconstitutional 17 years ago (see Matter of Raquel Marie X., 76 NY2d 387 [1990]), in order to provide statutory criteria in the place of what was supposed to be an interim judicial standard, renders the determination of difficult cases such as this even more difficult. We urge the Legislature to act without further delay. Thus, we remit the matter to the Family Court, Queens County, for further proceedings consistent herewith, including a determination with respect to the biological father’s custody petition. We note that the birth mother has, to date, not petitioned for custody of or visitation with the child. Crane, J.P., Goldstein and Garni, JJ., concur.