Linsey UU. (hereinafter "the mother") and Jason TT. (hereinafter "the father") are the parents of the subject children Trenton (date of birth: XX/XX/16) and Olivia (date of birth: XX/XX/18). On January 24, 2022, a Stipulation and Order was entered on consent of the mother and father granting the father sole custody and physical placement of the subject children, with the mother to have supervised parenting time on a graduated schedule plus additional time as mutually agreed. The order provided that the mother shall have a minimum of two phone/video calls per week with the children upon at least 48 hours of notice by the mother. As Attorney Shannan aptly summarized, "[t]hereafter the Father alleges that the Mother stopped reaching out to him and the children, while the Mother argues that the Father frustrated her efforts to see the children." Attorney Shannan's Memorandum of Law, p.1.

On July 28, 2023, the Family Court (Cassidy, J., presiding) suspended the mother's visitation without a hearing pursuant to a petition the father filed by order to show cause seeking to terminate the mother's parental rights due to abandonment. On September 12, 2023, the parties appeared for initial appearance at which the mother opposed the father's requested relief. The Family Court continued the suspension of the mother's visitation without taking any sworn testimony, stating that the mother had not been exercising her visitation. The mother addressed the Court, "Yes. I obviously heard you say you're going to suspend the visits that I haven't been receiving. Is there any way we can agree upon at least one phone call a week?" Attorney Shannan's Memorandum of Law, Exhibit A, p. 24. After hearing arguments by the father and the Attorney for the Children, the Court ruled, "I'm not going to order it. The parties can work that out if you all want to work that out but at this point it would be contact at the discretion of the [*2]sole custodian, [the father]." Attorney Shannan's Memorandum of Law, Exhibit A, p. 26.

On October 26, 2023, the parties appeared with counsel. Counsel for the father acknowledged that the wrong party had filed the wrong petition in the wrong court, specifically that adoption petitions with the father's ex-wife-turned-fiancée, T.M., as petitioner needed to be filed in Surrogate's Court. He stated he would be filing such petitions soon. Attorney Shannan's Memorandum of Law, Exhibit A, p. 28. Father's counsel expressed he would like to use the date of the father's filing in Family Court (July 28, 2023) as the nunc pro tunc date for the adoption petitions, and Family Court noted that counsel would have to make this motion "immediately" in Surrogate's Court upon filing the adoption petitions. Attorney Shannan's Memorandum of Law, Exhibit A, p. 33. Father's counsel stated he would withdraw the father's Family Court petition upon the filing of the adoption petitions in Surrogate's Court.

However, instead, in January of 2024, the father filed a motion in Family Court to convert the father's petition to adoption petitions and to substitute T.M. as the petitioner. The mother opposed the motion. By Decision and Order entered March 12, 2024, the Family Court denied the father's motion and stayed the proceedings for 90 days to again allow time for the filing of adoption petitions in Surrogate's Court. Finally, on June 14, 2024, T.M. filed adoption petitions in Surrogate's Court seeking to adopt the subject children. The petitions allege that the respondent mother's consent is not required on the ground of abandonment pursuant to Domestic Relations Law § 111(2)(a).

On September 27, 2024, the mother filed a motion to dismiss the father's Family Court petition due to the father's lack of standing to commence proceedings seeking to terminate the mother's parental rights. The Family Court denied the motion, and the mother appealed. The Third Department granted the mother's leave to appeal and stayed the proceedings. On July 3, 2025, following oral argument, the Third Department issued its Opinion and Order reversing the denial of the mother's motion to dismiss the father's Family Court petition. Matter of Jason TT. v. Linsey UU., 242 AD3d 84 (3rd Dept. 2025).

The adoption petitions were reassigned to this judge in Surrogate's Court, with an initial appearance held on August 25, 2025. Now, respondent moves for summary judgment dismissing the adoption petitions on the ground that, as a matter of law, the petitioner cannot establish abandonment under Domestic Relations Law § 111(2)(a). The petitioner and AFC oppose. The Court has reviewed all attorney submissions.

Summary judgment is available in adoption proceedings where no triable issue of material fact exists. See Matter of Nathon O., 55 AD3d 995, 996 (3rd Dept. 2008). The movant bears the initial burden of establishing entitlement to judgment as a matter of law, after which the burden shifts to the opposing party to raise a triable issue of fact through evidentiary proof in admissible form. See Zuckerman v. City of New York, 49 NY2d 557, 562—563 (1980).

Under Domestic Relations Law § 111(2)(a), the consent of a parent is not required where that parent "evinces an intent to forego his or her 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." [*3]"Abandonment, as it pertains to adoption, relates to such conduct on the part of a parent as evinces a purposeful ridding of parental obligations and the foregoing of parental rights — a withholding of interest, presence, affection, care and support." Matter of Corey L. v. Martin L., 45 NY2d 383, 391 (1978).

Although the statutory text of DRL § 111 does not expressly define the relevant six-month period, the Third Department has unequivocally held that it is the six months preceding commencement of the adoption proceeding, and this Court is bound by that precedent. Critically, "[t]he relevant six-month period is the six months preceding the commencement of the adoption proceeding [emphasis added]." Matter of Khrystopher EE., 182 AD3d 672, 673 n. 2 (3rd Dept. 2020); accord Matter of Joshua FF., 11 AD3d 738, 739 (3rd Dept. 2004). Here, the adoption petitions were filed on June 14, 2024. Accordingly, the statutory period for purposes of abandonment is December 15, 2023, through June 14, 2024. As a matter of law, the abandonment inquiry, for the purposes of DRL § 111 is confined to the six months immediately preceding commencement of the adoption proceeding.

While there exists a statutory presumption that a biological parent has the ability to visit and communicate with his or her children or person having legal custody of his or her children (DRL § 111(6)(a)), that presumption does not apply when a court order has suspended all contact between parent and child. Matter of Jason TT. v. Linsey UU., 242 AD3d 84, 89 n. 4 (3rd Dept. 2025). It is crucial to note that Jason TT. is the Opinion and Order in which the Third Department reversed the Family Court's denial of the mother's motion to dismiss the father's Family Court petition in this very case. The Third Department has proactively provided guidance on this legal issue to this Surrogate's Court, guidance which this Court is bound to apply.

It is uncontroverted that the mother's contact with the subject children remained judicially suspended for the entire period between July 28, 2023, and June 14, 2024. Pursuant to Jason TT., Id., the presumption that the mother was able to contact and visit with the subject children during that period does not apply. On September 12, 2023, the Family Court declined to order contact between the mother and children and instead ruled that any contact between the mother and children would be at the sole discretion of the father. In her motion for summary judgment, the mother presented evidentiary proof in admissible form (not disputed by the petitioner in her opposition) that she consistently contacted both the father and T.M. during the relevant six-month time-period (December 15, 2023, through June 14, 2024), asking about the children, requesting pictures, and seeking permission to contact them. Attorney Shannan's Memorandum of Law, Exhibit B. All of the mother's requests were either ignored or denied by the father and T.M.. Attorney Shannan's Memorandum of Law, Exhibit B. Thus, the mother did in fact consistently communicate with the person having legal custody of the children, and, as a result of the judge's order and the father's repeated denials, was "[un]able" to contact and visit [*4]with the children within the meaning DRL § 111(2)(a). As a matter of law, the petitioner cannot establish abandonment pursuant to DRL § 111(2)(a).

The Court is unpersuaded by the petitioner's and AFC's arguments, relying on non-binding caselaw, that the six-month period may be extended to some greater or other time-period. Instead, the Court agrees with the respondent that the proper application of any evidence from the period prior to the six months immediately preceding the filing of an adoption petition is merely to give appropriate context to the contact or lack of contact that occurred during the relevant six months. The Court has already done so here. There was no contact between the mother and children for the entire six months preceding the filing of the adoption petitions. The reason? The Family Court's order on July 28, 2023, renewed on September 12, 2023, suspending her parenting time and contact with them. These orders were made prior to the six-month period and provide the reason for the lack of contact that occurred during the six months. If we were to open the inquiry up further — to the year preceding the filing of the father's Family Court petition — why should the Court stop there? Should the Court also consider the near constant litigation between these parties regarding these children in Family Court from November 20, 2018, all the way up until that year-long period, including all of the petitions filed by the mother, all of the appearances made by the mother, and all of the parenting time and contact the mother had with the children during those years?

The AFC relies upon Matter of Kaitlyn D., 184 Misc 2d 150 (Family Court, Suffolk County 2000). That decision does not control here and cannot be used to circumvent binding precedent. Kaitlyn D. arose from an extraordinary procedural anomaly — a fifteen-month delay between the filing of the adoption petition and service upon the biological father — prompting the Suffolk County Family Court to employ a notice-based measuring date. No such anomaly exists in the present case. There was no delay between the filing of the adoption petition and notice, nor any suggestion that the respondent lacked awareness of the proceedings.

More fundamentally, this Court is bound by the unequivocal holdings of the Third Department that "[t]he relevant six-month period is the six months preceding the commencement of the adoption proceeding." Matter of Khrystopher EE., 182 AD3d 672, 673 n. 2 (3rd Dept. 2020); accord Matter of Joshua FF., 11 AD3d 738, 739 (3rd Dept. 2004). Indeed, another trial court confronted with Kaitlyn D. emphasized that, until this state's appellate courts or the Legislature direct otherwise, courts are required to follow the statutory mandate and measure abandonment by the six months immediately preceding the filing of the petition. See Matter of Anonymous, 191 Misc 2d 366 (Family Court, Onondaga County 2002). To adopt the AFC's position would require this Court to depart from controlling appellate authority and to substitute an equitable gloss for the clear rule articulated by the Third Department.

Were this Court — and other courts — to find otherwise, many parties would be in danger of permanent, non-consensual termination of their parental rights — and adoption of their children by others — where contact between parent and child remains judicially suspended (either intentionally or unintentionally) for six months or longer. Sometimes a court must suspend contact for a substantial period of time while waiting for the results of a psychological evaluation of a litigant; other times, an adjournment or two, for various reasons which could include attorney vacation schedules, can lead to longer-than-intended suspension of contact, despite the [*5]best efforts of a court. It is against public policy to allow a permanent severance of the parent-child relationship under these circumstances, especially in cases like this where the Department of Social Services has not seen fit to step in and file a neglect petition against the parent.

Respondent has established, as a matter of law, that during the six months immediately preceding commencement of the adoption proceedings, she was "[un]able" to visit and communicate directly with the children as a direct result of the Family Court order suspending her visits and contact with them, and, furthermore, she did in fact regularly communicate with and request visitation from the legal custodian of the children within the meaning of DRL § 111(2)(a). Therefore, as a matter of law, the petitioner cannot establish abandonment under DRL § 111(2)(a). Accordingly, it is hereby

ORDERED, that respondent's motion for summary judgment is GRANTED; and it is further

ORDERED, that the adoption petitions are DISMISSED.