John E. v. Doe

OPINION OF THE COURT Brown, J. On this appeal we are asked to consider, in light of the — 376 — guideposts established by the Court of Appeals in Matter of Raquel Marie X. (76 NY2d 387, cert denied sub nom. Robert C. v Miguel T., — US —, 111 S Ct 517), the circumstances under which a natural father, who is not married to his child’s mother and who has not lived with the child or the child’s mother for a continuous period of six months immediately preceding placement of the child for adoption (see, Domestic Relations Law § 111 [1] [e]), may prevent an adoption. We find that the natural father in this case has failed to establish that his interest in the child is deserving of constitutional protection. Accordingly, we conclude that his consent to the child’s adoption is not required. I In or about September 1986 the petitioner became involved in an extramarital affair with a married woman. At some point in the spring or summer of 1987, the woman learned that she had become pregnant. Initially, she and the petitioner intended to live together and raise the child, but in September of 1987 the woman left the petitioner and resumed living with her husband. The child, Daniel, was born on December 15, 1987, and was turned over to the respondents four days later as the result of a prearranged private adoption. On January 27, 1988, the petitioner commenced a proceeding in Family Court in Sullivan County, where Daniel was born, seeking custody of the child. He also sought an order of filiation, as Daniel’s birth certificate as filed indicated that the birth mother and her husband were his parents. Shortly thereafter, the petitioner moved to stay the adoption proceeding, pending in Rockland County, in light of his Sullivan County custody proceeding. Ultimately, the custody and paternity proceedings were transferred to Rockland County, where, in July of 1988, the adoption proceeding was stayed pending the petitioner’s submission to a human leucocyte antigen (hereinafter HLA) test. After the results of that test were received, indicating the probability of the petitioner’s paternity to be 99.93%, the respondents no longer pursued their claim that the petitioner lacked standing to seek custody of Daniel. In May of 1989, following mental health evaluations, the Family Court, Rockland County, issued an order deferring determination of the respondents’ motion to dismiss the cus — 377 — tody proceeding “pending a full hearing by this court as to what constitutes the best interests of the infant whose adoption is at issue”. That hearing commenced in June of 1989 and was concluded in October of 1989. By decision and order dated November 17, 1989, the Family Court dismissed the custody petition and directed that the adoption proceed. The court, in compliance with the express provisions of Domestic Relations Law § 111 (1) (e) (which set forth the conditions that must be met before the consent of the natural father of an infant who is born out of wedlock and placed for adoption at under six months of age is required), and in a stated effort to foster the rearing of children in the context of a meaningful family relationship, concluded that the petitioner’s consent for the adoption was not required and that the best interests of Daniel would be served by permitting him to remain with his prospective adoptive parents, with whom he had then been living for the first two years of his life. Upon reargument the court adhered to its original decision and this appeal ensued. II Domestic Relations Law § 111 lists several categories of persons whose consent to an adoption is required. Paragraph (e) of subdivision (1) thereof provides that the consent of the father of a child born out of wedlock who is under the age of six months at the time he or she is placed for adoption is only required if: “(i) such father openly lived with the child or the child’s mother for a continuous period of six months immediately preceding the placement of the child for adoption; and (ii) such father openly held himself out to be the father of such child during such period; and (iii) such father paid a fair and reasonable sum, in accordance with his means, for the medical, hospital and nursing expenses incurred in connection with the mother’s pregnancy or with the birth of the child” (Domestic Relations Law § 111 [1] [e]). However, in Matter of Raquel Marie X. (76 NY2d 387, cert denied sub nom. Robert C. v Miguel T., — US —, 111 S Ct 517, supra), which was decided subsequent to the Family Court’s decision in this case and while this appeal was pending in this court, the Court of Appeals declared Domestic Relations Law § 111 (1) (e) to be unconstitutional. Specifically, the court found that, the first clause thereof, which requires that the natural father live openly with the child’s mother during the six months preced — 378 — ing placement, neither furthers the State’s interest in determining the existence of a significant parental concern for a relationship with the child, focusing as it does on the relationship between the parents, nor sufficiently protects the natural father’s constitutional right to develop a qualifying relationship with the child. The court stated: "This is not to say that the unwed father’s failure to form ties with his newborn child may not be sufficiently great to constitute a sort of waiver or abandonment that would give rise to a State interest in providing the child with a permanent, stable home through adoption, as well as an interest on the part of prospective adoptive parents who have committed themselves to the child. The unwed father’s right is decidedly limited in duration. Nonetheless, a father who has promptly taken every available avenue to demonstrate that he is willing and able to enter into the fullest possible relationship with his under-six-month-old child should have an equally fully protected interest in preventing termination of the relationship by strangers, even if he has not as yet actually been able to form that relationship” (Matter of Raquel Marie X., supra, at 403). Although the Court of Appeals only considered the first clause of Domestic Relations Law § 111 (1) (e) to be constitutionally infirm, it nevertheless declared the entire paragraph unconstitutional, because "we know with certainty from the format of the existing statute as well as the contemporaneous expressions of intent that the Legislature would not have wished to have the unchallenged portions of the statute stand alone as the sole measure of an unwed father’s commitment to the child, entitling him to veto an adoption” (Matter of Raquel Marie X., supra, at 406-407). Pending the enactment by the Legislature of a new statute to replace Domestic Relations Law § 111 (1) (e), the court promulgated the following "principles gleaned from the [United States] Supreme Court decisions, which define an unwed father’s right to a continued parental relationship by his manifestation of parental responsibility” (Matter of Raquel Marie X., supra, at 408): "In the case of newborn infants, we take this to mean that the qualifying interest of an unwed father requires a willingness himself to assume full custody of the child—not merely to block adoption by others. In this connection, any unfitness, or waiver or abandonment on the part of the father would be considered by the courts, as they would whenever custody is in issue (see, Matter of Bennett v Jeffreys, 40 NY2d 543). "An assertion of custody is not all that is required. The — 379 — Supreme Court’s definition of an unwed father’s qualifying interest recognizes as well the importance to the child, the State and all concerned that, to be sufficient, the manifestation of parental responsibility must be prompt. In reaching this determination, courts should give due weight to the remaining portions of Domestic Relations Law § 111 (1) (e), which were directed to that same objective and are unchallenged in this litigation. Perhaps most significantly, they establish the period in which the father’s manifestation of responsibility for the child is to be assessed—the six continuing months immediately preceding the child’s placement for adoption. The interim judicial evaluation of the unwed father’s conduct in this key period may include such considerations as his public acknowledgment of paternity, payment of pregnancy and birth expenses, steps taken to establish legal responsibility for the child, and other factors evincing a commitment to the child” (Matter of Raquel Marie X., supra, at 408). A review of the facts of the case before us in light of the principles set forth by the Court of Appeals in Matter of Raquel Marie X. (supra) leads us to conclude that the petitioner failed to establish that his consent to this adoption is required. Moreover, as the best interests of Daniel would clearly be served by permitting him to remain with the only parents he has known since his birth three years ago, we agree with the Family Court’s determination that this adoption should be allowed to proceed (see, Matter of Bennett v Jeffreys, 40 NY2d 543, supra). Keeping in mind that the operative period is the six months prior to placement, in this case June through December of 1987, it appears that prior to September of 1987, the petitioner and the natural mother lived together. Apparently, it was during this period that the natural mother made her first visit to an obstetrician, a visit toward which the petitioner paid $100. Around Labor Day the natural mother told the petitioner that she had decided to return to her husband. According to the petitioner, during the over three-month period before Daniel’s birth, he telephoned the natural mother "several times”. He also intermittently checked on her progress by calling her sister. However, he did little more. The record discloses that the petitioner provided virtually no financial support during the operative time period, nor did he make any earnest effort to do so (see, Domestic Relations Law § 111 [1] [e]; Matter of Raquel Marie X., 76 NY2d 387, 408, — 380 — supra). Moreover, the petitioner’s lack of financial support continued following the child’s birth. In addition, the record is devoid of any indication that the petitioner publicly acknowledged his paternity during the six months preceding Daniel’s placement for adoption. Nor does it appear that the petitioner took any steps whatever during this period to establish his legal responsibility for the child. In this regard, it should be noted that a proceeding to establish the paternity of a child may be brought during the pregnancy of the mother (see, Family Ct Act § 517).* The petitioner’s conduct is in sharp contrast to that of the biological father in Matter of Baby Girl S. (141 Misc 2d 905, affd 150 AD2d 993, affd 76 NY2d 387), the companion case of Matter of Raquel Marie X., whose consent to adoption the court found to have been required. As soon as the biological father in Matter of Baby Girl S. learned that the child’s mother, with whom he was having an extramarital affair, was pregnant, he sought to marry her (see, Matter of Baby Girl S., supra, at 908). He also offered her $8,000 to help pay for her expenses (see, Matter of Baby Girl S., supra, at 909). After being rebuked, he filed a petition to establish paternity and to obtain custody of the unborn child (see, Matter of Baby Girl S., supra, at 907). During the course of the proceeding, and unbeknownst to both him and the Family Court Judge, the biological mother gave birth to Baby Girl S. and consented to her prearranged adoption (see, Matter of Baby Girl S., supra, at 907). Upon learning of the proposed adoption, he immediately filed with the Putative Father Registry. There was, simultaneously, an adoption proceeding in Surrogate’s Court, wherein the prospective adoptive parents, their attorney and the biological mother contrived to keep both the biological father and the Surrogate in the dark. It was on the basis of this evidence, evidence which is totally lacking here, that the — 381 — court determined that the biological father “did everything possible to manifest and establish his parental responsibility” (Matter of Raquel Marie X., 76 NY2d 387, 409, supra), by "seeking full custodial responsibility virtually from the time he learned of [the biological mother’s] pregnancy” (Matter of Raquel Marie X., supra, at 409). The petitioner’s lack of manifestation of parental responsibility and commitment at bar, while at first blush perhaps somewhat puzzling in light of his subsequent effort to establish paternity and to prevent Daniel’s adoption, is readily explained by an examination of the petitioner’s hearing testimony. At the hearing, the petitioner made clear that he had no desire to take legal responsibility for or obtain custody of Daniel once the natural mother resumed residency with her husband. The petitioner was content to effectively waive his custodial rights and parental responsibilities as long as he believed that Daniel would be raised by his natural mother and her husband. It was not until he learned that Daniel had been placed for adoption by his natural mother that the petitioner sought to assert his parental rights (although, tellingly, he continued to abdicate any of his parental responsibilities). During his hearing testimony, the petitioner explained that he had been raised by foster parents, and although he had no regrets about the manner in which he was raised, he believed that a certain “bonding” occurs between a biological parent and a child which was important to the child’s well-being. This, despite uncontroverted expert testimony that Daniel had already “bonded” with his adoptive parents, the respondents, and that to break this bond at that point in his young life would cause him irreparable injury. In view of this hearing testimony, and the fact that the petitioner was apparently uninterested in seeking custody of Daniel until he learned that his biological mother had placed him for adoption, we conclude that the petitioner’s purported "qualifying interest” is nothing more than an effort to block Daniel’s adoption by the respondents, whom he considers to be strangers, rather than to assume custody himself (see, Matter of Raquel Marie X., 76 NY2d, at 408, supra). A word about the nature of the custodial relationship sought by the petitioner is appropriate. The 48-year-old petitioner is employed full time and is unmarried, having been divorced from his wife during the pendency of these proceedings. He lives out of State with an adult daughter, who operates a day-care center from her home. According to the — 382 — petitioner, Daniel would be placed in this day-care center during most of his waking hours and, effectively, would be raised by the petitioner’s daughter. Given the limited contact that the petitioner would have with Daniel if he were allowed to prevail, one cannot help but further question his motivation in seeking custody of Daniel. The circumstances of this case lead us inexorably to the conclusion that the petitioner’s manifestation of interest in his now three-year-old child—a child whom he has never known— was neither sufficiently prompt nor sufficiently substantial to require constitutional protection (see, Matter of Raquel Marie X., 76 NY2d 397, 404, supra), and that, accordingly, his consent to the child’s adoption is not required. The petitioner initially waived his right to custody of Daniel and did not "promptly avail * * * himself of all the possible mechanisms for forming a legal and emotional bond with his child” (Matter of Raquel Marie X., supra, at 402). In short, under the facts of this case, the petitioner’s parental interest has been outweighed by "a State interest in providing the child with a permanent, stable home through adoption, as well as an interest on the part of prospective adoptive parents who have committed themselves to the child” (Matter of Raquel Marie X., supra, at 403). Ill Having determined that the petitioner’s consent to the adoption is not required, it must be determined whether it is in the best interests of Daniel to remain with the respondents (see, Matter of Bennett v Jeffreys, 40 NY2d 543, 544, supra). Of this there can be little doubt. The uncontroverted expert testimony elicited at the Family Court hearing established that Daniel’s interests will best be served by permitting him to remain with his adoptive parents. The adoptive father, a 36-year-old training specialist at the New York Power Authority, earns approximately $45,000 a year and works five days a week. His wife, a 37-year-old dental hygienist, works two days a week. A babysitter is employed to care for Daniel while the adoptive mother is at work. The respondents own a three-bedroom ranch style home in which Daniel, their only child, has his own bedroom and playroom. A fenced-in play area is provided for Daniel in the backyard, where there is also a fenced-in swimming pool. The respondents were described as well-prepared, involved parents. In the opinion of psychiatrist — 383 — Alan Tuckman, although Daniel would survive removal from those persons who have been his primary caretakers for his entire life, he would suffer serious emotional damage, particularly since he would be placed in the custody of someone who is unable to care for him on a full-time basis. Psychologist Bernard Schwartzberg found that "a warm, intimate bonding” had formed between Daniel and his adoptive parents, and that removal from their care would have "a devastating psychological effect” on Daniel. "[I]t would cause the development of what I would call basic anxiety in the child, which is a sense of feeling helpless and alone, feeling hostile. It would have consequences in the ability of the child to relate to people in a secure and meaningful manner and it might interfere with his potential”. In stark contrast, the 48-year-old petitioner could provide Daniel with little more than a biological parent. Full-time care of the child would be provided by the natural father’s 23-year-old daughter, in a day-care setting in which she would also care for six other children. Doubtless, Daniel’s best interests would be served by the respondents’ continued custody (see, Matter of Bennett v Jeffreys, 40 NY2d 543, 551-552, supra). IV Even if we were not prepared to conclude that the evidence supports the conclusion that the petitioner’s consent to Daniel’s adoption is not required, we would still not be prepared to dismiss the adoption proceeding. As is evident from the Family Court’s May 1989 order, the focus of the hearing held in this matter was in the context of Daniel’s best interests, and was not directed at the issue of whether the petitioner’s consent was required. Indeed, at the time of the Family Court hearing the law was such that all that was required to be established in order to determine that the petitioner’s consent to the adoption was not required was that the petitioner had not lived with the natural mother for the six months preceding Daniel’s birth. Thus the respondents had no reason to believe that it was necessary that they offer evidence of the petitioner’s waiver or abandonment of his right to veto the adoption. Accordingly, if we did not find the evidence of the petitioner’s waiver to be sufficiently clear on this record to meet the Matter of Raquel Marie X. guideposts, we would remit the matter for a new hearing at which the respondents would be given the opportunity to proffer such evidence. — 384 — Accordingly, the appeal from the order entered November 17, 1989, is dismissed, as that order was superseded by the order entered January 10, 1990, made upon reargument, and the order entered January 10, 1990, is affirmed, insofar as appealed from. Footnotes [*] It should also be noted that the fact that Daniel was in útero during practically all of the six months prior to his placement for adoption has little bearing on this analysis. In fact, the Legislature in enacting Domestic Relations Law § 111 (1) (e), and the Court of Appeals in deciding Matter of Raquel Marie X. were dealing with this precise situation, that is, the situation where the child in question is under the age of six months at the time he is placed for adoption (see, Domestic Relations Law § 111 [1] [e]; Matter of Raquel Marie X., 76 NY2d 387, 399, 401). Moreover, the children at issue in Matter of Raquel Marie X. and its companion case (Matter of Baby Girl S., 141 Misc 2d 905, affd 150 AD2d 993, affd 76 NY2d 387), were placed for adoption two months (Matter of Raquel Marie X.) and two days (Matter of Baby Girl S.) after their births.