The case before the Court is a Termination of Parental Rights proceeding filed by the Department of Social Services against Ms. G., the mother of twin boys, Jeremyah and Josyah G.,

born on August 5, 2011.

Keith J. is the biological father, who has also been declared the legal father of the children through an Order of Filiation issued on January 11, 2012.

Mr. J has moved this Court seeking an order that he is a father whose consent is required before his children can be adopted. The Department of Social Services opposes the motion, arguing that Mr. J. is not a father whose consent is required before the children can be adopted, but rather, a father to whom they are only required to provide notice of an impending adoption.

Both Mr. J. and the Department of Social Services rely on the Domestic Relations Law § 111(1)(d) which states that "consent to adoption shall be required as follows:

(d) Of the father, whether adult or infant, of a child born out-of-wedlock and placed with the [*2]adoptive parents more than six months after birth, but only if such father shall have maintained substantial and continuous or repeated contact with the child as manifested by:

(i) the payment by the father toward the support of the child of a fair and reasonable sum, according to the father's means, and either (ii) the father's visiting the child at least monthly when physically and financially able to do so and not prevented from doing so by the person or authorized agency having lawful custody of the child.

Both parties concede that Mr. J. has satisfied DRL § 111(1)(d)(ii), acknowledging that he has maintained regular contact with the boys.

The disputed and only issue before the Court is whether Mr. J. has contributed to the financial support of the children.

A hearing was held on December 16, 2013. Two witnesses testified. Joy C., a witness for the Department of Social Services and Mr. J., who testified on his own behalf. Ms. C., an employee of the Department of Social Services testified that an order of support was entered against Mr. J. on February 2, 2012, in the amount of $50.00 per month for the support of the two children. She indicated that Mr. J. never made any voluntary payments toward his support obligation and that there was no income execution because Mr. J. was not working on the books. Ms. C. stated that there were however, payments made in the amount of $705.00 from the Department of Taxation and Finance which seized Mr. J.'s tax refund. She also testified that Mr. J. is currently in arrears in the amount of $885.

Mr. J. testified that he was aware of the support order requiring that he pay $50.00 per month for his twin sons. He acknowledged that he did not pay any money toward the child support order, claiming that he could not afford to do so. He stated that he was unemployed except for the first three months of 2012 and 2013, when he was employed by Liberty Tax, a company that prepares tax returns. His job was to obtain business for the tax office by standing outside the office trying to get people to go in and hire the company to prepare their taxes. He acknowledged that he was paid on the books by Liberty Tax. Mr. J. explained that other than this employment he is unemployed. He explained however, that he has done odd jobs for people such as cutting grass, taking out garbage and various other chores. He indicated that he gets some money from these jobs, but was unable to attach a firm number to the amount of money he earns doing these jobs. He also stated that he returns bottles for the deposit return and will earn money in this manner. Additionally, at times his mother will give him money when he needs it. Mr. J. testified that he did apply for various jobs but was unable to work because his glasses were broken. Mr. J. also testified that when he was not working at Liberty Tax he received food stamps in the amount of $109.00 per month. When employed by Liberty Tax, Mr. J. stated that he is paid $250.00 every two weeks. He testified that he used that money to take care of himself and his basic needs. Mr. J. admitted to spending over $30.00 per week on cigarettes.

The issue before the Court is whether the tax refund due Mr. J. satisfies the statute as set forth in DRL § 111(1)(d)(i) "the payment by the father toward the support of the child of a fair and [*3]reasonable sum according to the father's means."

The Department of Social Services argues that Mr. J. never made any payments toward the support of the children even during the time he was working and earning money. Furthermore, they argue that Mr. J. was able to pay support during these times but, rather than support his children he used the money to buy cigarettes and other items for himself.

Mr. J. argues that the tax refund which was seized must be considered as payment by him toward the support of the children in that it was money he had earned and was entitled to.

The attorney for the children joins the Department of Social Services in their position that Mr. J. failed to make voluntary payments when he had income from various sources.

In the Matter of Vanessa Ann G.-L., 50 AD3d 1036, the Court found that the father met the standards for a consent father pursuant to DRL § 111(1)(d)(i) as he "commenced paying child support through a wage deduction order."

This Court does not see a distinction between payment through a wage deduction order and the seizure of a tax refund. Neither is being paid voluntarily by the father. Therefore, as the wage deduction order was found to meet the support standard, this Court is bound to find that the seizure of a tax refund, albeit involuntary, also satisfies DRL § 111(d)(i) and that Mr. J. must therefore be deemed a father whose consent is required before the adoption of these children may proceed.

This is an unfortunate result however, in light of the fact that since the time that Mr. J. was declared the father of the children in January, 2012, he never demonstrated an intent to assume custody or plan for these children. (See Raquel Marie X., 76 NY2d 387, 559 NYS 2d 855 [1990]). It seems that Mr. J.'s motivation in being a consent father is solely to delay the possible adoption of the children, thereby denying permanency for them. Unfortunately, the statute as written does not require that Mr. J.'s intentions be considered.

Wherefore, based on the foregoing it is

ORDERED, that Mr. J. has satisfied Domestic Relations Law § 111(1)(d)(i) and is therefore, a father whose consent to adoption is required.

This constitutes the Decision and Order of this Court.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT. AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

[*4]ENTER

__________________________

HON. ELLEN R. GREENBERG

Judge of the Family Court

Dated: January 10, 2014

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