Chloe, the adoptive child, was born July 29, 2000. S.B. and L.R.E., her biological parents, had been married but were separated at the time of her birth. Their divorce became final that summer. Chloe's biological father elected neither to retain counsel nor to contest the divorce, and pursuant to the terms of the decree, Chloe's mother received sole custody of her.

S.B. and L.R.E. attempted a reconciliation in April of 2001. S.B. moved in with L.R.E. and Chloe for five days. This attempt to re-build the relationship failed. S.B. moved out and married his second wife days thereafter. For the next two years, S.B. sent sporadic gifts to Chloe, often by having them delivered to the home of his former in-laws. However, he never once telephoned, wrote a letter, or even attempted to visit Chloe during this time. Meanwhile, Chloe's mother met the petitioner and their relationship deepened. In the spring of 2003, J.E. and L.R.E. purchased a home together and the two of them and Chloe began cohabitating ^[FN1].

J.E. filed this proceeding to adopt Chloe in September, 2003. The petition alleged that S.B.'s consent was not necessary due to his abandonment of Chloe. S.B. was served in this matter on December 17, 2003. S.B. immediately retained an attorney and filed objections to the adoption. A law guardian, Joseph G. Nesser, Esq., and a court evaluator, James R. Clark, PhD. were appointed by the Court to render a report and recommendation. Both the law guardian and the court evaluator have filed papers, supporting and recommending the adoption. Depositions were conducted on all sides, and both sides filed motions for summary judgment, which are now before the Court.

LAW [*2]

The consent of marital fathers is required under DRL 111(1)(b) unless it can be proven that the Court should dispense with such consent based upon the father's abandonment of the child. DRL 111(2)(a). Because S.B. and L.R.E. were married at the time of Chloe's conception, whether or not this adoption requires S.B.'s consent will be based upon whether or not he abandoned his daughter according to DRL 111(2)(a).

In order to make a finding of abandonment, a court must find that for six months or more a respondent has "[evinced] an intent to forego his or her parental... 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." DRL111(2)(a).

Here, the six month window of review runs from June 17, 2003 until December 17, 2003, the date that the respondent was served with notice of this adoption ^[FN2].

DRL 111(6) affords several guidelines to courts in making an abandonment determination: first, infrequent or insubstantial visits / communications with the child do not preclude a finding of abandonment, and second, there is a presumption that a parent is able to visit or communicate with the child

Summary judgment is a remedy to be granted by a Court only when there are no factual disputes, or when facts taken in a respondent's favor indicate that judgment as a matter of law is appropriate. Here there are no factual disputes regarding the level or frequency of S.B.'s communications/contact with Chloe, and the Court believes that summary judgment is therefore warranted in this case.

During the relevant six month time frame, the only communications S.B. had with Chloe were a card/gift certificate for her July birthday, and possibly a card/gift certificate for Christmas ^[FN3]. At no time did he write, telephone or seek to visit his daughter. At no time did he communicate [*3]with L.R.E., her parents ^[FN4] or her coworkers to inquire as to his daughter's welfare. At no time did he evince an intent to any way develop a relationship with his child. Two mailed cards / gift certificates were the sole contact during this time.

The infrequency of communications was not, however, a new trend. Even before June of 2003, S.B.'s actions showed a lack of initiative in creating a relationship with his daughter. In the default divorce action, he surrendered complete custody of Chloe without contest. The proposed findings of fact of the divorce proceeding state it thus: "Plaintiff [L.R.E.] is entitled to sole custody of the minor child of the marriage, born July 29, 2000, inasmuch as the Defendant [S.B.] has stated that he wishes to have nothing to do with this child"^[FN5]. S.B. was not represented in the divorce proceeding but presumably if the findings of fact erroneously stated his position with regard to Chloe he would have been moved to offer some form of correction. After the divorce, cards/gift certificates arrived sporadically. In the spring of 2001, S.B. filed a petition in Family Court seeking visitation with Chloe. However he abandoned this action by not appearing at the scheduled return date. S.B. has attempted to excuse his absence by stating that on the day of the return date, he believed to have reconciled with L.R.E.. Such excuse does not impress the Court, it suggests that S.B.'s true connection was not with Chloe at all but solely with his ex-wife.

It bears underscoring that at no time after April 2001 did S.B. call, write or visit Chloe ^[FN6]. At no time after this date did he even attempt to do so. Despite the fact that both parties live locally, S.B. has not even seen Chloe in over three years. The last time he did see her (April of 2001) was incidental to the reconciliation attempt with L.R.E., which occurred when Chloe was only six months old. From the facts alone, Chloe cannot have any meaningful memory of S.B. whatsoever. The court evaluator brought this point to light by asking Chloe in an unbiased manner whether she knew of anyone named "S.B.", and Chloe indicated that she did not ^[FN7]. Chloe's law guardian zealously argues that S.B.'s complete absence in Chloe's life is extremely telling, and reiterates to the Court that in fact Chloe calls the petitioner "daddy".

Throughout Chloe's life, S.B. has manifested an extremely detached attitude toward her, from willfully giving up custody in the divorce to the continued lack of telephone calls, attempts to visit or even contact his daughter. Sporadic cards and gift certificates (a maximum of two during the relevant six month period) cannot constitute "substantial communications" to override his historically standoffish posture toward Chloe and demonstrated unwillingness to assume the mantle of "father". Further, it is notable to this Court that the cards and gifts which he did send [*4]were done in the most emotionally removed way possible. Gifts to one's child can certainly constitute substantial communications with that child, they can evidence either a relationship with that child or an intent to begin one, when they are designed to do so. A thoughtfully chosen, and personally delivered parcel designed to truly enthuse a child speaks volumes. So does a generic gift certificate, antiseptically dropped in the mail, with little shown concern over the child's receipt or even appreciation thereof. The cards and gifts mailed to Chloe were as devoid of S.B.'s personal touch as could possibly be ^[FN8].

Such extremely infrequent, relatively anonymous and fairly effortless communication cannot be the basis for any colorable attempt to assert parental rights. In Matter of Taylor ^[FN9], the court held that a letter, card and gift within eleven months of the adoption petition were insufficient to preclude a finding of abandonment. In Matter of Sarah ^[FN10], a respondent "relieved" of the paternal responsibilities of child support and partial custody whose visits with his children were sporadic despite the fact that his own mother had monthly visitation at her home, was appropriately found to have abandoned his children. The current situation before the Court is not improved from either of these two cases and thus is appropriate for an order of abandonment and summary judgment on the same.

To attempt to get around his lack of physical presence in his child's life, S.B. has attempted to argue that he has had substantial communications with his child via payment of child support. DRL 111(6)(d). S.B. has argued that he paid $17,000 "for Chloe" in 2001. However, this amount was written in one lump sum check, dated June 20, 2001, and the memo field of this check indicates that this payment was regarding the East Rochester real estate, a home which was deeded to L.R.E. pursuant to the terms of the divorce. By S.B.'s own testimony, L.R.E. had been unable to make mortgage payments on this parcel and the debt which was in his name, had fallen into arrears. S.B. agreed to pay off the indebtedness in exchange for a deed to the real estate. S.B. asserts that this money was for child support, but his testimony shows that it was in reality an attempt to protect his own credit, and to stomach the helping of his former spouse he deemed [*5]it to be, in a very circuitous way, money "for Chloe"^[FN11]. S.B.'s argument that this money was child support is way too far attenuated to be relied upon by this Court. His re-characterization of the real estate payment is baseless, self-serving and without merit. Furthermore, this single check was written two years prior to the six month window of review. The record shows no other financial support or payments made by S.B. for the care of his daughter, at any time during her life.

Finally, S.B. has raised the issue that L.R.E. prevented him from seeing or communication with Chloe because of an altercation with J.E. and because of a lack of knowledge as to where L.R.E. and Chloe were residing. It is clear that relations between the parties have been less than cordial most of the time. However, S.B. admitted at his deposition that no altercation between the parties nor petitioner himself has kept S.B. from visiting his daughter ^[FN12]. There was no police report filed, no order of protection sought ^[FN13].

With regard to S.B.'s asserted ignorance as to L.R.E.'s residence, the court finds this extremely unpersuasive. L.R.E. remained in the marital residence until she began co-habitating with petitioner ^[FN14]. At all times she and Chloe remained local to the area. At all times, L.R.E.'s parents lived in the same house which they inhabited during S.B. and L.R.E.'s marriage and were available to be contacted for further information. S.B. was fully aware of L.R.E.'s parents location as he had sent some cards to Chloe there. Any ignorance on S.B.'s part as to Chloe's location was willful ignorance. The law presumes a parent's ability to communicate with his or her child ^[FN15]. S.B.'s embraced ignorance falls far short of overcoming this presumption.

Accordingly, it is held that as a matter of law, S.B. evinced an intent to forego his parental rights by a failure to substantially communicate with his daughter for a period of six months, in fact throughout most of her life. Petitioner's motion for summary judgment is therefore granted. The order of abandonment will be entered and this adoption allowed to proceed without S.B.'s consent.

In light of the foregoing, respondent's motion for summary judgment is hereby denied. [*6]

So ordered.

May 3, 2004

Hon. Edmund A. Calvaruso, Surrogate

Decision Date: May 03, 2004