Father's Consent May Not Be Required for Adoption

The court found that even though the petitioning agency chose to forego its claims of abandonment and neglect, the agency still bore the ultimate burden to prove that guardianship of the child should be committed to it, and to establish the factual basis for dispensing with the natural parents' consent. Citing a New York Court of Appeals case, the family court stated that the rights of biological parentage can be lost if an unwed father fails to take timely steps to substantiate his biological parentage. Matter of Raquel Marie X., 76 N.Y.2d 387 [1990], denied 498 US 984. “[I]n order to have the benefit of the maximum protection of the relationship-right to consent to or to veto an adoption, the biological father not only must assert his interest promptly (bearing in mind the child's need for early permanence and stability), but also must manifest his ability and willingness to assume custody of the child.” [Id. at p. 403 [cit omit]. The court then summarized the facts to support its decision.

“Here, the petitioner [child care agency] proved by clear and convincing evidence that the respondent [unwed father] left the mother while she was pregnant with the subject child. Although he contributed nothing to the mother's medical expenses, he did offer to pay for an abortion. He moved to North Carolina, where he remained for several months. Although employed, he sent no support to the mother. In fact, he had no contact with her at all. His lack of contact accounts for his ignorance about the mother's location when he returned from North Carolina to New York in November 1999. At that point, he made only feeble efforts to locate the mother, even after learning of the child's birth. The respondent did nothing upon learning from his sister that the child was in foster care. He did not petition the court to be declared the father of the child until the mother sought him out and urged him to do so. Even then, he came to court only when accompanied by his sister. He failed to follow through with the paternity petition. When the child was almost 5 months old, the respondent accompanied his sister to the foster care agency. He did not indicate his willingness to assume immediate custody of the child. Rather, he discussed visiting the infant. Although incarcerated a week later, the respondent waited 2 months before making any attempt to contact the foster care agency to advise them of his incarceration, or to inquire about the child. He did so only at his sister's urging, when she volunteered the name and telephone number of the assigned caseworker. Although the father did begin to call the agency in the fall of 2001, and visited the child at the agency upon his release from jail, he did not file another paternity petition until the child was more than a year old.

The father would have the court attribute his failure to grasp the opportunity to establish a relationship with the child, or to take steps to establish a legal right to custody of the child, to the mother's deception. However, the respondent admittedly did not believe, nor was he ever told, that the mother had had an abortion. The father did not bother to make any effort to maintain contact with the mother during her pregnancy. He expressed no interest in the birth of the child. The father's contention that he had made unsuccessful efforts to locate the mother was unpersuasive. In fact, he never asked to be produced in court on the paternity suit. He knew that the infant was in foster care, and he knew the identity of the agency. Indicative of his lack of interest in the infant was his failure to contact the foster care agency for 2 months following an unrelated incarceration. He only did so when his sister provided him with the necessary information.

Upon re-establishing contact with the agency, the respondent sought visits to the child. However, he took no steps to be declared the legal father, much less to assume custody of the child, until several months after his release from jail. At that point, the child was 15 months old.”

Under the facts, the court found that the father failed to demonstrate an interest in his child sufficient to enable him to withhold consent to an adoption, or to avoid a transfer of custody and guardianship to the petitioner. The court held that the mother did not interfere with or prevent the father from establishing a legal relationship with the child, either during her pregnancy or after the child's birth. Rather, it was the father's choice to leave the pregnant mother and to relocate out-of-state. He contributed no money to the mother, even though he was employed, except to offer to pay for an abortion. Rather than indicate that the mother concealed her pregnancy or the birth of the child, the evidence proved that the respondent's relatives informed him that the child was born. In fact, the mother sought him out and asked him to establish his paternity, but the father did not follow through with the paternity petition. The father in no way demonstrated a willingness to assume responsibility for the child's custody — filing the paternity petition did not demonstrate such a willingness and when he learned that the child was in foster care, he only went to the agency once and discussed visiting, rather than assuming custody of the child. After he went to jail, he had no contact with the agency for 2 months. After his release from jail, he showed no ability or willingness to assume custody of the child. He did visit the agency, but he failed to file another paternity petition until 2 months after his release from jail. Under these facts, the court could not conclude that the respondent father did “everything possible to manifest and establish his parental responsibility.” [Matter of Raquel Marie X., supra, 76 N.Y.2d at p. 409].

The facts did not demonstrate the father's interest in or concern for his child. Consequently, the court granted custody and guardianship of the child to the child care agency for the purpose of consenting to the child's adoption, without the consent of the natural parents. The court refused to credit the father's testimony on several matters, in light of the fact that he had denied committing a crime to which he pled guilty and was thereafter sentenced to 8 months in prison, and denied being under oath at the time he took the plea.

The court noted that the father had filed paternity petitions both before and after the agency sought to terminate his parental rights. The agency conceded that if the father had established an interest in the child, then his consent to the adoption would be necessary and the agency would have to prove that the father's consent was no longer required by virtue of his abandonment of the child. The court noted that “[t]his procedure, placing the burden on the child protective agency to prove by clear and convincing evidence that the natural father has failed to establish a recognizable interest in the child, is codified by statute in at least one jurisdiction.” [K.S.A. 1993, Supp. 59-2136[H][3] [4][5]; and see, In re. Baby Boy N., 19 Kan.App.2d 574, 874 P2d 680 [CA Kansas 1994] 8221 '94. It concluded, nevertheless, that he had waived his right when he declined to participate in further proceedings after the court determined that his consent to an adoption was not required.

After reviewing the facts regarding an unwed father's interest and involvement in his child's welfare, a New York family court held that a child care agency had met its burden to prove the father's consent was not needed to the adoption of his out-of-wedlock child. Matter of Baby Boy C, Family Court, Kings County, NY, March 2003.

A child protective agency filed a petition for adoption of a child placed in foster care 2 weeks after he was born. At first, the agency claimed both the mother and father had abandoned and neglected the child. Later, it dropped the abandonment charges against the father and alleged his consent was not needed under New York

Domestic Relations Law. The court reviewed the facts and the law, acknowledging that the mother had abandoned the child to foster care after 2 weeks. It cited cases interpreting the relevant statute and stated that in the instant case, consent for adoption of the child may be dispensed with only when the agency is appointed guardian under the statute. The agency may obtain lawful authority to consent to the child's adoption, stated the court, only where the child's natural guardians' consent is not required because the parent failed to manifest the necessary interest in the child so as to be able to exercise the right to consent.

The court found that even though the petitioning agency chose to forego its claims of abandonment and neglect, the agency still bore the ultimate burden to prove that guardianship of the child should be committed to it, and to establish the factual basis for dispensing with the natural parents' consent. Citing a New York Court of Appeals case, the family court stated that the rights of biological parentage can be lost if an unwed father fails to take timely steps to substantiate his biological parentage. Matter of Raquel Marie X., 76 N.Y.2d 387 [1990], denied 498 US 984. “[I]n order to have the benefit of the maximum protection of the relationship-right to consent to or to veto an adoption, the biological father not only must assert his interest promptly (bearing in mind the child's need for early permanence and stability), but also must manifest his ability and willingness to assume custody of the child.” [Id. at p. 403 [cit omit]. The court then summarized the facts to support its decision.

“Here, the petitioner [child care agency] proved by clear and convincing evidence that the respondent [unwed father] left the mother while she was pregnant with the subject child. Although he contributed nothing to the mother's medical expenses, he did offer to pay for an abortion. He moved to North Carolina, where he remained for several months. Although employed, he sent no support to the mother. In fact, he had no contact with her at all. His lack of contact accounts for his ignorance about the mother's location when he returned from North Carolina to New York in November 1999. At that point, he made only feeble efforts to locate the mother, even after learning of the child's birth. The respondent did nothing upon learning from his sister that the child was in foster care. He did not petition the court to be declared the father of the child until the mother sought him out and urged him to do so. Even then, he came to court only when accompanied by his sister. He failed to follow through with the paternity petition. When the child was almost 5 months old, the respondent accompanied his sister to the foster care agency. He did not indicate his willingness to assume immediate custody of the child. Rather, he discussed visiting the infant. Although incarcerated a week later, the respondent waited 2 months before making any attempt to contact the foster care agency to advise them of his incarceration, or to inquire about the child. He did so only at his sister's urging, when she volunteered the name and telephone number of the assigned caseworker. Although the father did begin to call the agency in the fall of 2001, and visited the child at the agency upon his release from jail, he did not file another paternity petition until the child was more than a year old.

The father would have the court attribute his failure to grasp the opportunity to establish a relationship with the child, or to take steps to establish a legal right to custody of the child, to the mother's deception. However, the respondent admittedly did not believe, nor was he ever told, that the mother had had an abortion. The father did not bother to make any effort to maintain contact with the mother during her pregnancy. He expressed no interest in the birth of the child. The father's contention that he had made unsuccessful efforts to locate the mother was unpersuasive. In fact, he never asked to be produced in court on the paternity suit. He knew that the infant was in foster care, and he knew the identity of the agency. Indicative of his lack of interest in the infant was his failure to contact the foster care agency for 2 months following an unrelated incarceration. He only did so when his sister provided him with the necessary information.

Upon re-establishing contact with the agency, the respondent sought visits to the child. However, he took no steps to be declared the legal father, much less to assume custody of the child, until several months after his release from jail. At that point, the child was 15 months old.”

Under the facts, the court found that the father failed to demonstrate an interest in his child sufficient to enable him to withhold consent to an adoption, or to avoid a transfer of custody and guardianship to the petitioner. The court held that the mother did not interfere with or prevent the father from establishing a legal relationship with the child, either during her pregnancy or after the child's birth. Rather, it was the father's choice to leave the pregnant mother and to relocate out-of-state. He contributed no money to the mother, even though he was employed, except to offer to pay for an abortion. Rather than indicate that the mother concealed her pregnancy or the birth of the child, the evidence proved that the respondent's relatives informed him that the child was born. In fact, the mother sought him out and asked him to establish his paternity, but the father did not follow through with the paternity petition. The father in no way demonstrated a willingness to assume responsibility for the child's custody — filing the paternity petition did not demonstrate such a willingness and when he learned that the child was in foster care, he only went to the agency once and discussed visiting, rather than assuming custody of the child. After he went to jail, he had no contact with the agency for 2 months. After his release from jail, he showed no ability or willingness to assume custody of the child. He did visit the agency, but he failed to file another paternity petition until 2 months after his release from jail. Under these facts, the court could not conclude that the respondent father did “everything possible to manifest and establish his parental responsibility.” [Matter of Raquel Marie X., supra, 76 N.Y.2d at p. 409].

The facts did not demonstrate the father's interest in or concern for his child. Consequently, the court granted custody and guardianship of the child to the child care agency for the purpose of consenting to the child's adoption, without the consent of the natural parents. The court refused to credit the father's testimony on several matters, in light of the fact that he had denied committing a crime to which he pled guilty and was thereafter sentenced to 8 months in prison, and denied being under oath at the time he took the plea.

The court noted that the father had filed paternity petitions both before and after the agency sought to terminate his parental rights. The agency conceded that if the father had established an interest in the child, then his consent to the adoption would be necessary and the agency would have to prove that the father's consent was no longer required by virtue of his abandonment of the child. The court noted that “[t]his procedure, placing the burden on the child protective agency to prove by clear and convincing evidence that the natural father has failed to establish a recognizable interest in the child, is codified by statute in at least one jurisdiction.” [K.S.A. 1993, Supp. 59-2136[H][3] [4][5]; and see, In re. Baby Boy N., 19 Kan.App.2d 574, 874 P2d 680 [CA Kansas 1994] 8221 '94. It concluded, nevertheless, that he had waived his right when he declined to participate in further proceedings after the court determined that his consent to an adoption was not required.