| Matter of Harmony P. (Christopher Q.) |
| 2012 NY Slip Op 04249 [95 AD3d 1608] |
| May 31, 2012 |
| Appellate Division, Third Department |
| In the Matter of Harmony P., Alleged to be a PermanentlyNeglected Child. St. Lawrence County Department of Social Services, Respondent; ChristopherQ., Appellant. |
—[*1] Laurie L. Paro, St. Lawrence County Department of Social Services, Canton, for respondent. Omshanti Parnes, Plattsburgh, attorney for the child.
McCarthy, J. Appeal from an order of the Family Court of St. Lawrence County (Potter, J.),entered July 8, 2011, which granted petitioner's application, in a proceeding pursuant to SocialServices Law § 384-b, to adjudicate respondent's child to be permanently neglected, andterminated respondent's parental rights.
Respondent is the father of, among others, Harmony P. (born in 2008). Petitionercommenced this permanent neglect proceeding alleging that Harmony had been in foster caresince August 2008 and respondent had failed to plan for her future for at least oneyear.[FN1]During the fact-finding hearing, petitioner moved to be excused from providing diligent efforts toreunify respondent and the child, based on the termination of respondent's parental rights withregard to [*2]another child (see Family Ct Act §1039-b [b]). Family Court granted the motion without holding an evidentiary hearing. The courtultimately found that Harmony was a permanently neglected child and, after a dispositionalhearing, terminated respondent's parental rights. Respondent appeals.
Family Court did not err in granting petitioner's motion without a hearing.[FN2]To establish permanent neglect, petitioner was required to prove by clear and convincingevidence that respondent failed to plan for the child's future for a period of one year, despitediligent efforts on petitioner's part to strengthen the parent-child relationship (see SocialServices Law § 384-b [3] [g] [i]; [7] [a]). An agency may move for an order finding thatreasonable efforts to return the child to the home are no longer required based upon certaingrounds (see Family Ct Act § 1039-b [a], [b]). As relevant here, reasonable effortsshall not be required where the court determines that the parent's rights to a sibling of the subjectchild "have been involuntarily terminated; unless the court determines that providing reasonableefforts would be in the best interests of the child, not contrary to the health and safety of thechild, and would likely result in the reunification of the parent and the child in the foreseeablefuture" (Family Ct Act § 1039-b [b] [6]). Although the statute does not require anevidentiary hearing on such a motion, courts have found that such a hearing is required byconstitutional notions of due process "when genuine issues of fact are created by the answeringpapers" (Matter of Damion D., 42AD3d 715, 716 [2007]; see Matterof Jaikob O. [William O.], 88 AD3d 1075, 1078 [2011]; Matter of Carlos R., 63 AD3d1243, 1245 [2009], lv denied 13 NY3d 704 [2009]).
Respondent contends that he raised genuine issues of fact requiring a hearing on the child'sbest interests, health and safety and the likelihood of reunification. When considering the motion,Family Court was aware of respondent's situation, from his and the family's extensive courtinvolvement. Information regarding the child's circumstances was supplied by petitioner, andrespondent had nothing to add from personal knowledge as he had not seen her during therelevant time period. The court essentially accepted many of respondent's factual assertionsconcerning recent changes in his circumstances, but found that his attempts atrehabilitation—which he did not complete until more than a year after the relevant timeperiod—were belated and it was unclear whether he would abstain from improper conductbased on his recent completion of substance abuse and sexual offender treatment. Thus, the courthad sufficient information before it to render a decision on this motion without holding a hearing(see Matter of Carlos R., 63 AD3d at 1245).
It is undisputed that respondent's parental rights as to another child were involuntarilyterminated. Pursuant to the statute, reasonable efforts were therefore unnecessary unlessrespondent established that the exception was met (see Family Ct Act § 1039-b [b][6]; Matter of Jacob E. [Valerie E.],87 AD3d 1317, 1318 [2011]; Matter of Sasha M., 43 AD3d 1401, 1402 [2007], lv denied10 NY3d 702 [2008]). The record supports Family Court's determination that excusing petitionerfrom providing reasonable efforts would be in the child's best interests, it would not adverselyaffect her health or safety, and reunification was unlikely in the foreseeable future with orwithout such efforts (see Matter ofJames U. [James OO.], 79 AD3d 1191, 1192[*3][2010]).Hence, the court did not err in granting petitioner's motion.
Spain, J.P., Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Petitioner also commenced aproceeding against Harmony's mother, who subsequently surrendered her rights to the child.
Footnote 2: Respondent's argument focusesonly on petitioner's motion to dispense with reasonable efforts at reunification. He does nototherwise challenge Family Court's determination of permanent neglect or the disposition.