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In re the Adoption of Devin F.

41 A.D.3d 1197 Court N.Y. App. Div. Decision date 2007-06-08 English

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p. 1197
In the Matter of the Adoption of Devin F. Jane M.M., Appellant; Meredith A., Respondent.
[837 NYS2d 475]

Appeal from an order of the Family Court, Chautauqua County (Judith S. Claire, J.), entered April 7, 2006 in a proceeding pursuant to Domestic Relations Law article 7. The order dismissed the petition.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Petitioner commenced this proceeding seeking to adopt her husband’s child. According to petitioner, respondent mother had abandoned the child, and thus her consent to the adoption was not required. We conclude that Family Court properly dismissed the petition on the ground that respondent’s consent to the adoption was required and was not given (see Domestic Relations Law § 111 [1] [c]). The evidence presented at trial established that respondent timely and consistently paid child support pursuant to an order entered upon her agreement with the child’s father in conformity with the requirements of the Child Support Standards Act (see Family Ct Act § 413 [1]). Such payment of child support is “deemed a substantial communication by [respondent] with the child or person having

p. 1198
legal custody of the child” and precludes dispensing with respondent’s consent to the adoption on the ground of abandonment pursuant to Domestic Relations Law § 111 (2) (a) (§111 [6] [d]; cf. Matter of Taylor O.P., 303 AD2d 1024 [2003]). The court properly rejected petitioner’s contentions that the amount of child support was not “fair and reasonable . . . , according to [respondent’s] means” (Domestic Relations Law § 111 [6] [d]), and that respondent’s payments were not made voluntarily because they were made through a wage deduction order (see Matter of Hayley, 190 Misc 2d 764 , 772 [2000]). Finally, petitioner failed to preserve for our review her constitutional challenge to Domestic Relations Law § 111 (see generally Matter of Lydia K., 112 AD2d 306 , 307 [1985], affd 67 NY2d 681 [1986]; Matter of Latrice R., 93 AD2d 838 [1983], lv denied 59 NY2d 604 [1983]). Present—Scudder, P.J., Gorski, Martoche, Smith and Green, JJ.

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