In re the Adoption of Matthew D.

Kehoe and Smith, JJ. (dissenting).

We respectfully dissent. We conclude that Surrogate’s Court erred in determining that the biological father took sufficient action in the six months preceding the placement of the child for adoption to require his consent to the adoption (see Matter of Michael D.D.S., 24 AD3d 680, 681 [2005]; Matter of Baby Girl U., 224 AD2d 869, 869-870 [1996], lv denied 88 NY2d 810 [1996]; Matter of Jarrett, 224 AD2d 1029, 1031-1032 [1996], lv dismissed 88 NY2d 960 [1996]; see generally Matter of Robert O. v Russell K., 80 NY2d 254, 262-266 [1992]; Matter of Raquel Marie X., 76 NY2d 387, 403-409 [1990], cert denied sub nom. Robert C. v Miguel T., 498 US 984 [1990]). We particularly see no basis for a determination that, during the six-month period in question, the biological father took “every available avenue” and availed himself of “all the possible mechanisms” in order to demonstrate that he was both “willing and able” to enter into the “fullest possible relationship” with the child upon his birth (Raquel Marie X., 76 NY2d at 402-403). The record establishes that, except for his purchase of baby items in the amount of $156.04 and his filing of a paternity petition, the biological father took no action during the six-month period to indicate any custodial intent on his part. Such token financial support is insufficient to manifest custodial intent (see Matter of Raymond AA. v Doe, 217 AD2d 757, 761 [1995], lv denied 87 NY2d 805 [1995]; Matter of Raquel Marie X., 173 AD2d 709, 712-713 [1991]; Matter of John E. v Doe, 164 AD2d 375, 378-380 [1990], lv denied 78 NY2d 853 *1106[1991]). Moreover, the biological father’s paternity petition did. not contain a request for custody. We note in addition that the biological father did not seek legal custody of the child until approximately one month after the child’s placement for adoption, and the majority thus inappropriately relies on the biological father’s commencement of that custody proceeding as support for its decision (see Robert O., 80 NY2d at 264; Raquel Marie X., 76 NY2d at 408). Prior to the child’s placement for adoption, the biological father did not file with the putative father registry, did not arrange to have himself named on the child’s birth certificate, did not place the child on his medical insurance, never accompanied the child’s mother to any of her visits to the doctor, and did not attend or seek to attend the birth. We further note that, although employed throughout the six-month period, the biological father did not pay any support to the mother nor did he contribute anything toward the medical expenses of the mother or the child. Under the circumstances, the evidence fails to demonstrate the biological father’s willingness to take full parental responsibility for the child.

Moreover, there was a complete absence of evidence demonstrating the biological father’s ability and readiness to assume full custody upon the birth of the child and at the time of placement. Throughout the relevant period and, indeed, until the time of the hearing, the biological father lived in an apartment that he himself characterized as six flights up and too small, too dangerously located, and otherwise unfit for an infant. In addition, the biological father had no baby furnishings in the apartment. Further, the biological father took no steps in furtherance of his plan to move back to his mother’s home and to raise the child there with his mother’s assistance.

Under the circumstances of this case, it simply cannot be said that the biological father did “everything possible to manifest and establish his parental responsibility” (Raquel Marie X., 76 NY2d at 409). The Court of Appeals has rejected the notion that the biological mother or the adoption agency is affirmatively obligated to facilitate the efforts of the biological father to demonstrate his willingness to take on parental responsibilities (see generally Robert O., 80 NY2d at 265-266) and, in this case, “it cannot be said that there was such active concealment as would excuse the failure of [the biological father] to assert his parental interest in time” (Jarrett, 224 AD2d at 1032; see generally Robert O., 80 NY2d at 259-266). We therefore would reverse the order, grant the motion of petitioners and Adoption S.T.A.R., Inc. and the motion of the biological mother to reject the Referee’s report, reinstate the adoption petition and remit the matter to *1107Surrogate’s Court for further proceedings on the petition. Present—Pigott, Jr., P.J., Hurlbutt, Kehoe, Smith and Green, JJ.