(dissenting and voting to reverse the order appealed from, on the law, on the facts, and in the exercise of discretion, and to remit the matter to the Family Court, Queens County, for the execution by the birth mother of a new extrajudicial consent to the adoption of the subject child, the filing of an amended petition within 90 days, and a determination on the amended petition thereafter, with the following memorandum): While I concur with the majority that the extrajudicial consent executed by the birth mother was invalid, I respectfully dissent from that portion of the decision which concludes that the biological father’s consent to the adoption was required.
Domestic Relations Law § 111 (1) (e) is the consent statute that is relevant here, because the child was under six months of age at the time she was placed for adoption. In 1990, the New York Court of Appeals, in Matter of Raquel Marie X. (76 NY2d 387 [1990]) struck down as unconstitutional the portion of Domestic Relations Law § 111 (1) (e) that required cohabitation of the birth parents, and called upon the Legislature to enact a replacement statute. The New York Legislature has yet to amend Domestic Relations Law § 111 to correct its constitutional infirmities. Thus, in determining whether or not an unwed father has the right to consent to the proposed adoption of his less-than-six-month-old child, courts must follow the interim judicial criteria set forth by the Court of Appeals in Matter of Raquel Marie X. (76 NY2d 387 [1990]). I do not agree with the majority that the biological father in this case has satisfied the required judicial criteria.
The Court of Appeals, in Matter of Raquel Marie X., conducted a thorough analysis of the evolution of United States Supreme Court case law and New York statutory provisions to explain that “[u]ntil the 1970’s, unwed fathers had no legally recognized interest” in the father-child relationship (id. at 397), but that *886since the 1970’s, “the interest of unwed fathers in a relationship with their children has gained significant recognition in the law” (id. at 401).
The interests of unwed fathers cannot be taken lightly in this or any action. The protected interest of an unwed father, however, is by no means absolute and “is not established simply by biology” (id.). As declared by the Court of Appeals, “[t]he unwed father’s protected interest requires both a biological connection and full parental responsibility; he must both be a father and behave like one” (id. [citation omitted]). Thus, in a proposed adoption by strangers, an unwed father’s interest in the father-child relationship is protected “so long as he promptly avails himself of all the possible mechanisms for forming a legal and emotional bond with his child” (id. at 402 [citations omitted]). According to the Court of Appeals, in order for an unwed birth father: “to have the benefit of the maximum protection of the relationship—the right to consent to or veto an adoption— [he] 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 402).
In evaluating a father’s ability and willingness to assume custody, courts examine whether the father (1) publicly acknowledged paternity, (2) paid for medical and related pregnancy and birth expenses, (3) took steps to establish legal responsibility for the child, and (4) took any other steps to demonstrate his commitment to the child (see Matter of Robert O. v Russell K., 80 NY2d 254, 262 [1992]; Matter of Raquel Marie X., 76 NY2d at 405-406, 408; Matter of Baby Boy C., 13 AD3d 619, 620 [2004]). A birth father can lose his interest in the father-child relationship if he fails to “grasp such opportunities for a significant relationship” (Matter of Raquel Marie X., 76 NY2d at 402).
In enunciating the standard to be applied pending legislative action, the Court of Appeals declared, in pertinent part, that: “[i]n the case of newborn infants . . . the qualifying interest of an unwed father requires a willingness himself to assume full custody of the child—not merely to block adoption by others . . . An assertion of custody is not all that is required” (id. at 408).
The Court of Appeals determined that “the manifestation of parental responsibility must be prompt” (id.). Moreover, upon giving due consideration to the remaining portions of Domestic Relations Law § 111 (1) (e) that were unchallenged in Matter of Raquel Marie X., the Court of Appeals reiterated that the “peri*887od in which the father’s manifestation of responsibility for the child is to be assessed [is] the six continuing months immediately preceding the child’s placement for adoption” (id.; see also Matter of Baby Boy C., 13 AD3d at 620).
Here, the record reveals that when the subject child was born, the biological father and birth mother were 17 and 14 years old, respectively. The biological father learned of the birth mother’s pregnancy in November 2003. The child was born on April 1, 2004. The birth mother executed a non-judicial surrender of the child on April 3, 2004. Accordingly, the relevant time period under Matter of Raquel Marie X. for determining whether the biological father manifested an intention to assume custody of the child is confined to the pregnancy as of November 2003 to the child’s birth on April 1, 2004 and to the surrender that occurred a mere two days after the birth. Several events that occurred during that time frame, or which failed to occur, lead me to conclude that the biological father falls short of meeting the requirements established by the Court of Appeals for him to be deemed a “consent father.”
The first event was a meeting between the families of the birth mother and the biological father in November of 2003. The meeting was conducted at the home of the biological father, and was secretly videotaped by a member of his family. The purpose of the meeting, according to the biological father, was “to clarify that [he] did not [forcibly] rape [Tenisha],” as the maternal grandmother and her church pastor had stated that he could be arrested for rape. The paternal grandmother also testified that the purpose of the meeting was to discuss rape. Efforts were made by the biological father’s family, while the videotape was rolling, to secure the birth mother’s recantation of prior allegations of forcible rape. Though the biological father could not, in fact, be prosecuted for rape because of his age (see Penal Law §§ 130.35, 130.30, 130.25), a fact that he and his family may not have known at that early stage of events, he was subject to criminal prosecution for sexual misconduct under Penal Law § 130.20. At no time during the families’ meeting did the biological father make any statement that he wanted to parent the child, according to both his own testimony, as well as that of the birth mother (see Matter of Micah HH., 261 AD2d 723, 725 [1999]). The overriding concern of the biological father and his family, at that time, was penal rather than parental.
The second event during the relevant period, mentioned by the majority, was a single trip by the biological father to the birth mother’s church in the hope of seeing her, since he was uncertain at that time where she was residing. The majority *888misconstrues the significance of this trip. Any effort made by the biological father to see the birth mother and speak with her was not tantamount to manifesting an intention to assume custody of the child upon birth. Similarly, any desire that the biological father expressed to be present at the birth, while perhaps showing support for the birth mother, did not evidence his intention to assume custody of the child.
Third, against the backdrop of the birth mother having spoken with police and prosecutors about potential rape charges, which she ultimately decided not to pursue, and the videotaped meeting between the birth families about rape, the biological father and his family moved out of the jurisdiction, to Maryland, on January 30, 2004. A distant relocation during the pregnancy, as occurred here, is significant and has been held by this Court to be inconsistent with a manifestation by a father to assume custody of a child (see Matter of Baby Boy C., 13 AD3d 619 [2004] [father denied “consent” status for, inter alia, relocating to North Carolina during pregnancy]).
Fourth, while the biological father acknowledged paternity to his own mother, he never registered, at any time, with the New York State Putative Father Registry pursuant to Social Services Law § 372-c.
Fifth, given the biological father’s age and lack of income, he can be excused from any expectation of providing meaningful financial assistance for medical and pregnancy-related expenses. However, even considering the biological father’s limited financial means, during the relevant period he never attempted to transmit to the child or to the birth mother, either directly or through third parties that knew the birth mother’s whereabouts, so much as a stuffed animal, bib, or rattle.
Sixth, the trial court, and my colleagues in the majority, err, as a matter of law, in attributing, to the biological father, certain limited offers of assistance made by the paternal grandmother toward satisfaction of the “consent father” requirements, such as offering to provide some maternity clothes and the making of certain phone calls. In Matter of Raquel Marie X., the Court of Appeals, in establishing the interim judicial criteria for evaluating unwed fathers’ conduct, directed the courts to “give due weight to the remaining portions of Domestic Relations Law § 111 (1) (e)” (Matter of Raquel Marie X., 76 NY2d at 408). The plain and unambiguous language of Domestic Relations Law §111 (1) (e) provides that its factors apply to “the father, whether adult or infant, of a child born out-of-wedlock” (emphasis added). The language chosen by the Legislature appears to be deliberate, in focusing our attention solely upon the *889father, regardless of his infancy or majority. Necessarily, the statute excludes consideration of the conduct of proxy individuals such as, in this instance, the child’s paternal grandmother (see Matter of Kyle, 156 Misc 2d 260, 265 [1992], affd 195 AD2d 1014 [1993]). The involvement of the paternal grandmother, which the trial court and the majority interpret as favoring the biological father, is instead irrelevant under the plain and unchallenged language of Domestic Relations Law § 111 (1) (e), and is not interpreted as relevant by decisional authority (see Matter of Michael E. J., 84 AD2d 816, 817 [1981] [visits and gifts from biological father’s family is no substitute for visits and gifts from the biological father under Domestic Relations Law § 111 (6) (a)]; cf. Matter of Michael, 272 AD2d 618 [2000]). Moreover, the argument that the biological father should be credited with efforts of his own mother severely undercuts, and is inconsistent with, proof that he had the “ability and willingness to assume custody of the child” as required by the Court of Appeals in Matter of Raquel Marie X. (at 402; emphasis added).
Seventh, my colleagues in the majority qualify the biological father as a “consent father” on the basis of acknowledgment of paternity, efforts by the paternal grandmother to provide support such as by offering some maternity clothes, and efforts by the biological father to witness the birth which were rebuffed. The latter point regards testimony by the biological father and the paternal grandmother of an out-of-court statement by Pastor Kelly of the maternal grandmother’s church that the biological father would be arrested if he were to go to the hospital to witness the birth. It was error for the trial court to rely on this piece of evidence as a principal basis for its determination. Assuming its admissibility into evidence not for its truth, but to explain the biological father’s state of mind in reacting to the pastor’s statement (see generally Prince, Richardson on Evidence § 8-106 [Farrell 11th ed]), the biological father nevertheless testified that had he known where the birth occurred, he would have tried visiting the birth mother anyway (accord Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 14 AD3d 325, 341 [2005], affd 6 NY3d 265 [2006]). Thus, the biological father’s efforts were not subject to any meaningul threats, and such evidence does not support the trial court’s finding that he was prevented from fulfilling the expectations of the constitutional portions of Domestic Relations Law § 111 (1) (e) and Matter of Raquel Marie X.
None of the seven circumstances discussed above, standing alone, would warrant a finding that the biological father fails to qualify as a “consent father” in this proceeding. However, all of *890these seven circumstances, viewed collectively, divest him of “consent father” status.
The majority relies upon this Court’s decision in Matter of Kiran Chandini S. (166 AD2d 599 [1990]), to support its position that the biological father did not waive any custody rights because his family’s alleged efforts to help the birth mother were declined and he was not informed of the birth until the child had already been surrendered for adoption. That case is easily distinguishable on its facts. The reason why the father in Matter of Kiran Chandini S. did not himself assume custody was because he did not believe that the birth mother would place the child for adoption. Here, the testimony of the biological father evidences his understanding, as early as November 2003, that the birth mother was not going to raise the child. Despite that knowledge, the biological father moved to Maryland, failed by his overall conduct during the relevant period to manifest any ability or willingness to assume custody over the child,* and did not promptly or actually file petitions to establish paternity or obtain custody of the child until after the child had been placed for adoption. These facts do not support a finding that the biological father qualifies as a “consent father” (see Matter of Nicholas X.R., 246 AD2d 311 [1998]).
Assuming that the issue of the birth mother’s extrajudicial surrender of the baby was properly before the trial court in its role as parens patriae over the birth mother, who was herself a minor, the surrender was properly annulled by the Family Court. However, given the birth mother’s consistent and continuous assertion that she would, under such circumstances, merely re-execute an enforceable surrender, she should be permitted the opportunity to do so (see Social Services Law § 384 [1] [c]; 2 [a]-[b]).
Finally, as noted by the majority, the Legislature has failed for 17 years to amend Domestic Relations Law § 111 (1) (e) since the Court of Appeals rendered its decision in Matter of Raquel *891Marie X. This split bench evidences the disservice to families within the state occasioned by the Legislature’s failure to act.
Since the biological father has not satisfied the criteria set forth in Matter of Raquel Marie X., in that he failed during the relevant six-month period preceding the child’s placement for adoption to promptly assert his willingness and ability to assume custody of the child, I respectfully dissent from the portion of the majority’s decision which concludes otherwise. While this appeal does not lend itself to easy solution, the more proper result under the facts and applicable law is to reverse the order dated June 30, 2006, denying the petition, stay any transfer of custody of the child to any other person for a period of 90 days pending the birth mother’s execution of a new and valid judicial surrender of the child, grant the petitioners Mr. Anonymous and Mrs. Anonymous leave to file an amended petition for adoption within those 90 days, and direct the Family Court to make a determination on the amended petition thereafter, without requiring the consent of the biological father.
The biological father returned to New York after the child was born and only then filed custody and paternity petitions. He was ultimately adjudicated the father in October 2004 and granted supervised visitation with the child in January 2005. While the post-surrender time period is not relevant to the issue of whether or not an unwed biological father of a child under six months old has gained a protected interest in that relationship, entitling him to consent to or veto an adoption (see Matter of Raquel Marie X.), it is noteworthy that even after he was awarded supervised visitation with the child in 2005, the biological father’s visits were, at best, unreliable and sporadic, with less than 50% attendance, thereby indicating a lack of any serious interest in forming a full father-child relationship (see Matter of Baby Girl U., 224 AD2d 869, 870 [1996]).