| Matter of Kailynn WW. (Jeremy WW.) |
| 2011 NY Slip Op 00071 [80 AD3d 839] |
| January 6, 2011 |
| Appellate Division, Third Department |
| In the Matter of Kailynn WW., Alleged to be a Severely AbusedChild. Chemung County Department of Social Services, Respondent; Jeremy WW.,Appellant. |
—[*1] David A. Kagle, Chemung County Department of Law, Family Court Division, Elmira, forrespondent. Francisco Berry, Ithaca, attorney for the child.
Peters, J.P. Appeal from an order of the Family Court of Chemung County (Buckley, J.),entered April 16, 2010, which granted petitioner's application, in a proceeding pursuant to SocialServices Law § 384-b, to adjudicate Kailynn WW. to be a severely abused child, andterminated respondent's parental rights.
Respondent, the father of Kailynn WW. (born in 2007), was sentenced to two years in prisonupon his March 2008 plea of guilty to the crime of assault in the second degree after he admittedto repeatedly striking the child on her head and body. In June 2008, petitioner commenced aproceeding against respondent and the child's mother[FN1]alleging that the child had been neglected, abused and severely abused. Thereafter, in December2009, Family Court [*2]granted petitioner's motion for summaryjudgment adjudicating the child to be, among other things, severely abused based uponrespondent's criminal conviction and relieving petitioner of its obligation to make reasonableefforts to reunite respondent with the child. Petitioner then commenced this proceeding seekingto terminate respondent's parental rights on the ground of severe abuse. Following a hearing,Family Court terminated respondent's parental rights and freed the child for adoption.Respondent appeals,[FN2]and we affirm.
Respondent contends that petitioner failed to make reasonable efforts to reunite him with hisdaughter prior to being relieved of its obligation to do so. As respondent did not opposepetitioner's motion for a determination to relieve it of this obligation, the issue is not preservedfor our review (see Matter of StephianaUU., 66 AD3d 1160, 1164 [2009]). In any event, diligent efforts towards reunificationmay be retrospectively excused where, as here, such efforts on the part of petitioner would havebeen detrimental to the best interests of the child (see Matter of Marino S., 100 NY2d361, 373 [2003], cert denied 540 US 1059 [2003]; Matter of Carlos R., 63 AD3d 1243, 1245 [2009], lv denied13 NY3d 704 [2009]; see also Family Ct Act § 1039-b [b] [4]; Social ServicesLaw § 384-b [8] [a] [iv]).
Respondent's assertion that Family Court failed to comply with the requirements of SocialServices Law § 384-b (8) (f) prior to terminating his parental rights is without merit. SocialServices Law § 384-b (8) (f) provides that, upon a finding of severe abuse, Family Courtmust hold a dispositional hearing addressing whether the best interests of the child requiretermination of parental rights or entry of a suspended judgment. Here, following Family Court'ssummary determination that the child was severely abused, the only issue to be resolved waswhether to terminate respondent's parental rights or enter a suspended judgment, and the partieswere informed that a hearing would be held for that purpose. While inappropriately labeled a"fact-finding" hearing, the hearing that ensued was clearly dispositional in nature. Testimony waspresented regarding, among other things, the special needs of the child, her progress in hercurrent foster home, respondent's capacity to care for the child and the availability of potentiallysuitable relatives for placement. Respondent was provided an opportunity to offer evidence andsufficient proof was presented so as to allow Family Court to make a reasoned decision as towhich disposition would serve the child's best interests (cf. Matter of Angela OO., 204AD2d 768, 769 [1994], lv denied 84 NY2d 803 [1994]; Matter of Katrina W.,171 AD2d 250, 256-257 [1991], appeal dismissed 79 NY2d 976 [1992], certdenied 506 US 876 [1992]). Accordingly, we find no error.
Rose, Lahtinen, Kavanagh and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: The mother surrendered herparental rights in December 2009.
Footnote 2: Parenthetically, we note that therecord contains a dispositional order adjudicating the child to be permanently neglected.Although no appeal was taken from this order, as petitioner argues and respondent concedes,permanent neglect was neither alleged nor proven and the order in no way reflects the litigationin this matter.