
    In the Matter of the Adoption of Drew B. Goldman. Catherine A. Goldman, Appellant; Mary J. Goldman, Respondent.
    Argued January 13, 1977;
    decided February 24, 1977
    
      
      David A. Field and Ira A. Turret for appellant.
    
      Herbert Schrank, Sidney Segelstein and Ralph R. Hochberg for respondent.
   Memorandum. The order of the Appellate Division (51 AD2d 282) is affirmed, with costs. That court correctly determined, upon the record before it, that the natural mother had not abandoned the child within the meaning of section 111 of the Domestic Relations Law in effect at the time this adoption proceeding was commenced or, as we think also, within the meaning of that section as amended by chapter 666 of the Laws of 1976 (see, e.g., Matter of Susan W. v Talbot G., 34 NY2d 76). The heavy burden of proving abandonment (Matter of Bistany, 239 NY 19; Matter of Cocozza v Antidormi, 35 AD2d 810) has not been met by petitioner, who married the natural father following the parents’ divorce. Even with the change, if indeed applicable, wrought by the amendment to section 111 of the Domestic Relations Law (L 1976, ch 666, § 9), lightening the burden of proving abandonment, the burden remains a heavy one, especially if constitutional limitations are to be observed (see Matter of Bennett v Jeffreys, 40 NY2d 543, 548).

Reliance by the Surrogate on the provisions of section 371 of the Social Services Law, in focusing upon the mother’s intent in measuring her conduct as a yardstick or predicate for a finding of abandonment, was inappropriate. That section and article 6 of the Social Services Law within which it is found, deal not with the question of abandonment sufficient to negative the required consent by a natural parent in adoption proceedings, but relates to custody cases dealing with the State’s role in the care and protection of neglected or deprived children.

We do not agree with the analysis advanced by the dissenter and his application of the standards sought to be imposed based on the facts of this case. This proceeding, brought by the father’s second wife, seeking to deprive a mother of parenthood, was commenced in April, 1974, and involves a young man about to reach his majority. In the context of the factual background of this case, it is regrettable that this long controversy has, as is often the case, engendered bitterness between the adult litigants. Often, such charges and countercharges are not conducive to the completely satisfactory resolution of such a highly sensitive and delicate problem.

The Appellate Division found, for which there is adequate support in the record, that the natural mother permitted the son to live with the father, a man of substantial means, during times when she was undergoing two serious operations. The latest was in 1968 when she was required to undergo a laminectomy, a serious surgical procedure necessitating a lengthy hospitalization and convalescence. Testimony also revealed, as found by the court below, that the mother continued to communicate with her son and sent him gifts. The testimony also revealed that by agreement, the son was sent to visit his mother in Westchester by chauffeured limousine on weekends. It is undisputed that these visits began to be more infrequent and, upon inquiry, she was told by the father that the boy was busy and otherwise engaged. She also testified that she requested the father to return the boy to her custody as provided in and by a prior separation agreement, but she was not successful. Additionally, there was testimony that phone calls to her husband’s home were also rebuffed and that she was told " 'You cannot see him on Saturdays anymore or on weekends. Out. Completely.’ * * * In other words, 'Just stay back there’ ”. It is clear, therefore, that petitioner has not met the heavy burden of proving abandonment on the part of the natural mother; nor, in fact, has she demonstrated that the mother evinced "an intent to forego * * * her parental or custodial rights and obligations” as required by the most recent amendment of section 111 of the Domestic Relations Law (L 1976, ch 666, § 9). Thus, we find no warrant for a determination that the status of parenthood be dissolved.

Cooke, J. (dissenting).

I cannot agree with the majority’s affirmance of the Appellate Division order.

The instant adoption proceeding was instituted pursuant to article 7 of the Domestic Relations Law on April 30, 1974. At that time, consent to adoption was not required of a parent who had "abandoned” his or her child. There was, however, no statutory standard set in the Domestic Relations Law for determining what constituted abandonment and courts were required to rely upon the strict common-law standard applied in such cases as Matter of Bistany (239 NY 19) and Matter of Maxwell (4 NY2d 429). Requisite was a showing of acts so unequivocal as to bear one interpretation and one only, that the parent manifested an intention to abandon the child forever (Matter of Bistany, supra, at p 24) or "a settled purpose to be rid of all parental obligations and to forego all parental rights” (Matter of Maxwell, supra, at p 433). As recently as May of 1974, this court reaffirmed that standard, noting that "Even where the flame of parental interest is reduced to a flicker the courts may not properly intervene to dissolve the parentage” (Matter of Susan W. v Talbot G., 34 NY2d 76, 80).

Since 1974, section 111 of the Domestic Relations Law has been twice amended, first to overrule the "flicker of interest” test and ease the burden on the party seeking to prove abandonment (see Memorandum of Joseph R. Pisani, New York State Senator, in support of Senate Bill 1992-A for 1975; NY Legis Ann, 1975, p 62) and later to set a standard for abandonment in keeping with that applicable to other proceedings with the similar objective of terminating parental rights. By section 3 of chapter 704 of the Laws of 1975, the Legislature amended section 111 so that "evidence of insubstantial and infrequent contacts by a parent with his or her child shall not, of itself, be sufficient as a matter of law to preclude a finding that such parent has abandoned such child.” Then, in 1976, to become effective on January 1, 1977, section 111 was further amended (L 1976, ch 666, § 9), this time to bring the standard for abandonment applicable to this proceeding into line with those found in the Social Services Law and the Family Court Act.

If we accept, as we must, the proposition that a case must be decided on the basis of the law in effect at the time of judicial review (Matter of Ray A. M., 37 NY2d 619, 621; Strauss v University of State of N. Y., 2 NY2d 464, 467, and cases cited therein), it is clear that we cannot affirm the Appellate Division order of reversal. That court relied upon case law, the stringency of which had been effectively overruled by chapter 704 of the Laws of 1975 which had taken effect on August 9, 1975, seven full months before the Appellate Division handed down its decision reversing the Surrogate. In view of the uncontested fact that the mother made no attempt during a period of three years to visit her son, the mother’s "flicker of interest” as evidenced by a few small gifts and birthday cards might not have been sufficient to preclude a finding of abandonment, particularly in light of the fact that the mother continued to receive $3,000—$4,000 per year from the natural father for care of this child though the child no longer resided with her. While the Surrogate may have misstated and misapplied the law, the Appellate Division was in error when it concluded that "Under the facts disclosed in this record, although the flame of parental interest may be a mere flicker, nevertheless, this court should not extend its hand to extinguish the light” (51 AD2d 282, 285).

In its concern for children heretofore precluded from enjoying a normal family life in a permanent home, the Legislature has determined it wise to lessen the burden on those seeking to free such children from tenuous family ties in an attempt to afford such children the permanent home it believes they deserve and need. Since there is no vested right in a rule of evidence (People v Turner, 117 NY 227, 233; Matter of L’Hommedieu v Board of Regents of Univ. of State of N. Y., 276 App Div 494, 507, affd 301 NY 476, affd 342 US 951), the Legislature had the power to enact the evidentiary rule here and make it applicable to pending proceedings even though it effected a change in a previously existing rule of evidence. The courts, for their part, must acknowledge and carry out the legislative change.

Accordingly, the order of the Appellate Division should be reversed and the matter remitted to the Surrogate’s Court of New York County for further proceedings and determination in the light of existing law.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones and Fuchsberg concur in memorandum; Judge Cooke dissents and votes to reverse in a separate opinion in which Judge Wachtler concurs.

Order affirmed. 
      
       We note that, while this amendment became effective January 1, 1977, the Legislature expressly provided that it should not be construed "so as to alter, affect, impair, defeat or restore any rights * * * accrued, incurred, conferred or terminated prior to the effective date of this act” (L 1976, ch 666, § 35).
     