These are applications by the Petitioner J.P.B. for an order of filiation of Baby Girl B. and custody of Baby Girl B. born November 4, 2009. The applications were brought on by way of Orders to Show Cause filed on February 22, 2010. The matters came on for trial on May 10th, 2010, and were continued on May 12, 13, 17 and 18, 2010. Also pending before the Court is a Petition for Adoption of Baby Girl B. filed by S. L. S. & F.C S. Mr. B. was represented by Annette M. Hollis, Esq., of counsel to the Law Office of Joanne M. White, the Respondent, Friends In Adoption, Inc., was represented by Frederick J. Magovern, Esq., the Respondent, D. B. was represented by Brendan O'Shea, Esq., the Petitioners/Respondents, S. L. S. and F. C. S., were represented by Benjamin J. Rosin, Esq., and Karen A. Riley, Esq., of the Children's Rights Society, Inc., was the Attorney for the Child.

NOW, after examination and inquiry into the facts and circumstances of the case and after hearing the proofs and testimony offered in relation thereto; it is hereby

Ordered that the petitions for custody and paternity are denied and pursuant to Domestic Relations Law §111(e) the Court finds that the consent of the biological father to the adoption is not necessary.

D. B. and J. B. had a 10 year relationship which began when they were in high school. In [*2]the Fall of 2006 the parties commenced living together. Mr. B. is employed by the Civil Service Employees' Association as a State Representative and he is a registered lobbyist. Ms. D.B., although holding a Master's Degree, was never able to find a stable position and has worked various jobs including being a nanny. While they lived together it is clear that Mr. B. was the primary source of support.

In the summer of 2009, Mr. B. became concerned when he noticed Ms. D.B. was gaining weight and insisted that she see a doctor. He testified that he inquired at least three times if she was pregnant and each time she denied that she was. Her mother testified that as a child Ms. D.B. had suffered from constipation and this was Ms. D.B.'s excuse to Mr. B. for the weight gain and stomach distention. Mr. B. testified that many of his friends asked him if D.B. was pregnant. At his insistence, her mother did take her to a physician and Ms. D.B. reported to Mr. B. that she was not pregnant. Despite his professed concerns, Mr. B. did not go with her to the doctor. Additionally, Mr. B. testified that during 2009 he had told D.B. that he did not know if he wanted children.

There is no doubt that Ms. D.B. attempted to and was successful at concealing her pregnancy from Mr. B.. There was extensive testimony about Ms. D.B.'s avoidance of physical contact/sexual relations with Mr. B. from the summer time until December, 2009. She completed this ruse by having a colonoscopy approximately two weeks after the baby was born. However, there were also many signs that she was pregnant. Mr. B.'s family and friends questioned him repeatedly as to whether or not Ms. B. was pregnant based on her physical appearance. She was very moody and crying at various times as testified to by him. She also wore baggy clothes. It was clear to this Court that Mr. B. did not want to believe she was pregnant.

The time demands of Mr. B.'s job, as testified to by him, are very erratic. He does not work nine to five and is basically at the beck and call of the New York State Governor and Legislature. He is particularly stressed work-wise during budget preparations. When he receives a call he drops everything and goes to work at any time of the day. As the New York State budget is always months overdue it appears that Mr. B. is always on the run. It is clear that he would have a difficult time caring for an infant with this schedule.

Mr. B. testified that he has a sister who was only able to have one child. He also testified that he would be relying on his mother, a former emergency room nurse, to help him with the baby. The Court's concern is that Mr. B. is not truly seeking custody so that he can assume full responsibility for the child but that his other family members would actually be the caretakers for the child.

On November 4, 2009, Ms. D.B. gave birth to Baby Girl B. in the late afternoon. She then left the hospital, went home to where Mr. B. was watching the Yankees game with a friend, explained that the parents for whom she was a nanny needed her to spend the night at their home and then returned to the hospital. At the hospital, Ms. D.B. informed the social worker that she wished to give the baby up for adoption. The social worker gave Ms. D.B. a list of adoption agencies and Ms. D.B. selected Friends In Adoption because she testified that she was told Friends In Adoption would not insist on the name of the father. Ms. D.B. testified that she told the agency that one of two people could be the father and that neither was interested in parenting the child. The Agency did not insist on Ms. D.B. naming the two putative fathers which this [*3]Court finds to be inexcusable especially in light of the fact that Ms. D.B. had previously surrendered another baby to Friends In Adoption^[FN1]. Ms. D.B. persisted in her story that she did not know who the father of the child was in that the Affidavit of the Biological Mother submitted with the Petition for Adoption also stated that she did not know who the father was thus attempting to commit a fraud upon the Court. After leaving the hospital, Ms. D.B. then resumed her life with Mr. B..

On January 15, 2010, Mr. B. arrived home to find a letter from the Albany County Department of Social Services regarding the social security number of a baby girl born on November 4, 2009. He questioned Ms. D.B. about the letter and she insisted that it was a mistake. However, he was suspicious and the next day he went through all of her belongings until he found a locked purse. He testified that he pried open the purse with a screwdriver and discovered the surrender papers. Upon confrontation Ms. D.B. finally admitted she had given birth to a baby girl. At that point Mr. B. began his quest to locate the child.

Through a friend of his he met with an attorney named Mark Johnis who apparently did not specialize in Family Law. That attorney arranged for him to have a meeting with Mary Walsh-Snyder, Esq., who is legal counsel for the agency and Director of Pre-Adoption Services. Mr. B. wished to have a paternity test done and evidently that meeting was a predicate to having the test done. He met with Ms. Walsh-Schneider on February 5, 2010, the paternity test was subsequently performed and on February 15, 2010 he received the results of the paternity test confirming him as Baby Girl B.'s father. It is to be noted that as soon as Mr. B. discovered that Ms. D.B. had given birth he told all of his friends and family that he was the father. A week after receiving the results of the paternity test the custody petition was filed. Approximately one month after that, in March, 2010, he filed with the Putative Father Registry.

Mary Walsh-Snyder, Esq., testified at the trial that she had a conversation with Ms. D.B. prior to execution of the surrender documents. She stated that Ms. D.B. told her she had informed the birth father of the pregnancy, that the birth father was disinterested and had not contacted her since she told him she was pregnant and planned to place the child for adoption. Ms. Walsh-Snyder testified that Ms. D.B. also stated that she did not want the biological father to be involved. Ms. Walsh-Snyder went on to testify that Ms. D.B. had the right to decline to identify the father (Trial Transcript, May 17, 2010, p. 41).

New York State Codes, Rules and Regulations, Title 18, Part 421 sets forth the "Standards of Practice for Adoption Services". Section 421.5 of that Part sets forth the "Services to fathers born out-of-wedlock". That section requires an adoption service to:

"(1) take steps to identify the father and determine the extent of relationship between father and mother and between father and child;

(2) make efforts to involve the father in planning for the child;

(3) give the alleged father an opportunity to recognize or deny paternity; [*4]

(4) if the father admits paternity but is unwilling or unable to plan for the child, attemptto obtain a voluntary surrender of father's rights in child when such action would be in the best interests of the child; and

(5) if the father is unwilling or unable to plan, and is also unwilling to voluntarily surrender rights, take such steps to obtain termination of the father's parental rights as are appropriate to the best interests of the child." 18 N.Y.S. Reg. §421.5 (a)(1-5).

It is clear that the adoption service here, Friends In Adoption, was remiss in its duties to Mr. B.. Unfortunately, its failure to abide by the New York State regulations have resulted in the present situation. The Court cannot find however, based on the current state of New York State case law, that this would provide a basis to remove the subject child from her adoptive family.

Additionally, the Court notes that Friends In Adoption filed the initial petition for Approval of an Extra-Judicial Surrender in Saratoga County. After Mr. B. learned of the child's existence and contacted Friends In Adoption, that petition was withdrawn and a new petition for Approval of an Extra-Judicial Surrender was filed in Orange County. While the agency asserts that it was for the convenience of the adoptive parents who reside in Orange County, the Court can only assume that the bonus was to make it more difficult for Mr. B. to pursue his inquiry.

After the paternity test, Mr. B. sought visitation with the baby through Friends In Adoption. The adoptive parents agreed that Mr. B. could visit the baby at their home. They would not agree to anyone coming with Mr. B. and Mr. B. believed that they wanted to discuss an open adoption with him. He rejected the open adoption option and the opportunity to be introduced to his biological child. For a biological father who protests so much love for a child he has never seen, the Court finds it incomprehensible that he rejected this offer to meet his biological child.

Mr. B. testified that he has prepared a room for the baby with all the necessities for an infant so that he could accept custody at any time. He also testified that he inquired as to health insurance and making the baby the beneficiary on his life insurance. He was told he could not complete these items until he had her social security number. There was no evidence that he has offered to help support the baby at this time in any way by giving money to the adoptive parents or paying the hospital bills or by any other means. At the time of his testimony, he had not made any provision for the child in the event of his demise.

S. L. S., the prospective adoptive mother also testified in the course of this proceeding. She testified as to her attempts to have children and finally having a medically necessary hysterectomy. She testified as to her and her husband's longing to have a family and their fears that because they were over 40 they would not be selected by a birth mother. Finally, she gave heart-wrenching testimony as to how the subject baby made a family for her and her husband. There is no reason to believe that this baby, now eight months old, is not fully bonded with her prospective adoptive parents.

It is against this back drop that the Court is asked to be King Solomon. Does the Court remove this child from the only parents she knows and turn her over to a virtual stranger? None of the parties appear willing to make a sacrifice so this Court must make a decision.

Domestic Relations Law §111(1)(e) sets forth the criteria for when consent is required by [*5]a biological parent. As regards an out-of-wedlock father of a child who is under the age of six months when placed for adoption the statute mandates that the father's consent must be secured when:

" (I) such father openly lived with the child or the child's mother for a continuous period of six months immediately preceding the placement of the child for adoption; and (ii) such father openly held himself out to be the father of such child during such period; and (iii) such father paid a fair and reasonable sum, in accordances with his means, for the medical, hospital and nursing expenses incurred in connection with the mother's pregnancy or with the birth of the child."

In 1990, the Court of Appeals found that the provision requiring that the birth parents live together for six months prior to the surrender for adoption to be unconstitutional and therefore declared the entirety of Domestic Relations Law §111(1)(e) unconstitutional (Matter of Raquel Marie X., 76 NY2d 387; 559 NYS2d 855). In the twenty years that have elapsed since that decision, the New York State Legislature has not acted to remediate the statute. The Court of Appeals did list actions which can be taken by the biological father which the courts should consider in their evaluation of whether the biological father's consent for an adoption is necessary. These considerations include: (1) "the willingness to assume full custody of the child"; and (2) "public acknowledgment of paternity, payment of pregnancy and birth expenses, steps taken to establish legal responsibility for the child and other factors evincing a commitment to the child." (, supra , 76 NY2d 387, 408)

However, in Matter of Raquel Marie X., supra , most importantly to the life of the child, the Court of Appeals affirmed the time period in which the "father's manifestations of responsibility for the child is to be assessed — the six continuing months immediately preceding the child's placement for adoption", supra , 76 NY2d 387, 408. In this case Ms. D.B. executed the surrender on November 5, 2010. Applying this strict rule, Mr. B. would have had to demonstrate his willingness to care for the child for the six months preceding this date. This was a time period in which he professes ignorance of the actual pregnancy although it is clear that he suspected a pregnancy.

The companion case to Matter of Raquel Marie X. is Baby Girl X. In that case the biological father was successful in asserting his right to seek custody of the child. There the Court found "the biological father himself seeking full custodial responsibility virtually from the time he learned of Regina's pregnancy, did everything possible to manifest and establish his parental responsibility. The Surrogate recited Gustavo's persistent and uniformly rebuffed expressions of concern, offers of support and requests for custody, as well as his legal efforts to establish paternity and secure custody - within the six months preceding the infant's placement..." , supra , 76 NY2d 387, 409.

In this case it is clear that this particular biological father did not take any of the suggested actions prior to the placement of the child because of his alleged lack of actual knowledge of the pregnancy. Even though Mr. B. suspected a pregnancy, he did not accompany his live-in partner of three years to the doctor's office. The Court finds it difficult to believe that he could have had a relationship with Ms. D.B. for 10 years and not have realized she was pregnant at least once. The Court has viewed the photos entered into evidence of D.B. during the [*6]pregnancy. It would be very obvious to the ordinary reasonable person, as it was to this Court, that the photos are of a pregnant woman. As Mr. B. suspected a pregnancy and as Ms. D.B. appeared pregnant, he could have listed himself in the Putative Father Registry which would have made him a consent father.

The Putative Father Registry (Social Services Law §372-c) is the mechanism established by the New York Legislature by which unwed fathers can protect themselves. As noted by the U.S. Supreme Court in Lehr v Robertson Et Al, 463 U.S. 248; 103 S. Ct. 2985:

"The legitimate state interests in facilitating the adoption of young children and having the adoption proceedings completed expeditiously that underlie the entire statutory scheme also justify a trial judge's determination to require all interested parties to adhere precisely to the procedural requirements of the statute." Id., 463 U.S. 248, 265.

There have been a string of Court of Appeals cases since the decision in Matter of Raquel Marie X. which give some guidance. In 1992, the Court of Appeals decided Robert O. v Russell K., 80 NY2d 254, 590 NYS2d 37. In that case the unwed father sought custody of his biological son ten months after the adoption had been finalized. He and the child's mother had a relationship but had separated and she subsequently discovered that she was pregnant. The mother did not tell the father that she was pregnant when she realized this fact and made arrangements for the baby to be adopted. After the birth and adoption of the baby the parties reconciled and married and the mother then told the father about the baby and the adoption. The baby was almost 18 months old when the father found out about his existence. The Court of Appeals clearly recognized the problem of the unknowing unwed father of an infant placed for adoption immediately at birth. "Any opportunity he has to shoulder the responsibility of parenthood may disappear before he has a chance to grasp it, no matter how willing he is to do so." , supra , 80 NY2d 254, 262.

However, in examining the facts, that Court found it significant that the mother continued living in the same house and did nothing to hide her pregnancy. The petitioning father took the position that the Courts must be required to determine who the father is before it finalizes an adoption. The Court of Appeals rejected this contention. In his concurring opinion, Judge Titone wrote:

"In my view, the adoption should be left undisturbed despite petitioner's competinginterest in the child not because petitioner is blameworthy, but rather because the strong public policies favoring the finality of adoptions outweigh the interest of a biological father who, through no fault of his own, has been deprived of the opportunity to manifest and establish his parental responsibility toward the child' (cites omitted)." Id., 80 NY2d 254, 267.

Judge Titone goes on to note that in this age of sexual permissiveness, "it is the women, rather than the men, who are in the unique position to discover whether a pregnancy has resulted." And further "it is the women, rather than the men, who hold the exclusive power to decide whether or not the other progenitor is to be informed of the pregnancy's existence. The man who has not been told of the pregnancy has few, if any avenues of recourse." Id., 80 NY2d 254, 268.

This Court finds that the Petitioner did not manifest his intent to care for the subject baby [*7]during the critical six months prior to the placement for adoption and therefore his consent to the adoption is not necessary. Even after he found out about the child, as noted above, although Mr. B. has prepared a nursery he has not taken any real steps in assuming responsibility for the child in that he has not paid any hospital or medical bills or paid any support for the child. When he suspected D.B. of being pregnant, he did not go to the doctor with her. He accepted her lie that she was not pregnant despite the overwhelming physical manifestation of her pregnancy. He told her he did not know if he wanted children. When he found out D.B. had given birth to a child, he insisted on a paternity test before taking any action. Although offered an opportunity to meet the child, he did not do so because his terms for the visitation were not met. Additionally, his testimony left this Court with the distinct impression that he would rely on his mother and other family members to care for the child rather than assuming full responsibility of that obligation himself.

The Court analogizes this case to be controlled by the Court of Appeals decision in Robert O. v Russell K., Id., as in that case the biological father also did not know of the existence of the child. While that was a post-adoption application, the same reasoning must be applied, especially in light of the Court of Appeals mandate that all actions must occur within the six months preceding the child's placement (Matter of Raquel Marie X., supra ). Both Robert O. and Mr. B. took action as soon as they became aware of the child's existence, even though Mr. B.'s action was to ask for a paternity test first. But as the Court of Appeals stated:

"To conclude that petitioner acted promptly once he became aware of the child is tofundamentally misconstrue whose timetable is relevant. Promptness is measured in terms of the baby's life not by the onset of the father's awareness. The demand for prompt action by the father at the child's birth is neither arbitrary nor punitive, but instead a logical and necessary outgrowth of the State's legitimate interest in the child's need for early permanence and stability." Id., 80 NY2d 254, 264.

Thus this Court must find that it is not significant to the life of the child as to whether the biological father's lack of action in the six months before the child is placed for adoption is because of active concealment of the pregnancy or because of a failure to advise of the pregnancy. It is significant to this child that she have early permanence and stability. She has that at this time and this Court finds that pursuant to Matter of Raquel Marie X. and its progeny there is no legal requirement to disturb that permanence and stability.

While the Court can clearly find that Ms. D.B. lied to the Petitioner about her pregnancy and lied to Friends In Adoption about the putative father, it must also find that Mr. B. was alerted by many people that Ms. D.B. appeared to be pregnant, and that by not attending the doctor's visit with her, he, in effect, chose not to know whether or not she was pregnant. Additionally, when offered the chance to meet the baby he declined to do so. Last, he has done nothing to support this child. Accordingly, the Court can only conclude that Mr. B.'s consent to the adoption pursuant to Domestic Relations Law §111(e) is not necessary and the petitions for orders of custody and paternity are dismissed.

This constitutes the decision and order of the Court.

Dated: Goshen, NYE N T E R

July 15, 2010 [*8]

______________________________

ANDREW P. BIVONA

Family Court Judge