| Matter of Joannis P. (Joseph Q.) |
| 2013 NY Slip Op 06756 [110 AD3d 1188] |
| October 17, 2013 |
| Appellate Division, Third Department |
| In the Matter of Joannis P. and Others, Children Alleged tobe Permanently Neglected. Schenectady County Department of Social Services,Respondent; Joseph Q., Appellant. (And Another RelatedProceeding.) |
—[*1] Jennifer M. Barnes, Schenectady County Department of Social Services,Schenectady, for respondent. Samantha H. Miller, Schenectady, attorney for the children.
Stein, J. Appeals from two orders of the Family Court of Schenectady County(Powers, J.), entered October 15, 2012 and October 18, 2012, which granted petitioner'sapplication, in a proceeding pursuant to Social Services Law § 384-b, to adjudicatethe subject children to be permanently neglected, and terminated respondent's parentalrights.
Respondent is the father of Joannis P. (born 2005), Carmen P. (born 2006) andJoseph P. (born 2008), each of whom was removed from his care in August 2009 as aresult of his relapse into drug abuse. At that time, respondent was on probation and wasrequired to, among other things, report to his probation officer and submit to randomsearches and drug tests. Respondent admitted to using heroin and his probation officerdirected him to report to an [*2]inpatient drug treatmentfacility on September 1, 2009. Although he agreed to receive treatment, he failed toreport to the facility and a probation violation petition was filed. In January 2010, he wasarrested, his probation was revoked and he was thereafter incarcerated.
In the meantime, the children remained in petitioner's care and were placed in fosterhomes; Carmen and Joseph resided in one home[FN1]and, due to behavior issues, Joannis was placed in a separate, therapeutic foster home. Apetition to terminate respondent's parental rights based on abandonment was filed, butwas dismissed following a fact-finding hearing.[FN2]Nonetheless, petitioner filed the subject petition in December 2010, alleging thatrespondent had permanently neglected his children by, among other things, failing toplan for their future.[FN3]After a fact-finding hearing, Family Court determined that respondent had permanentlyneglected the children and, following a dispositional hearing, terminated his parentalrights. Respondent now appeals, and we affirm.
As a threshold matter, petitioner was required to prove by clear and convincingevidence that it made diligent efforts to encourage and strengthen the relationshipbetween respondent and the children (see Social Services Law § 384-b [7][a]; Matter of Johanna M. [JohnL.], 103 AD3d 949, 949-950 [2013], lv denied 21 NY3d 855 [2013]; Matter of James J. [James K.],97 AD3d 936, 936-937 [2012]). With respect to a parent who is not incarcerated,diligent efforts generally " 'include counseling, making suitable arrangements forvisitation, providing assistance to the parent[ ] to resolve or ameliorate the problemspreventing discharge of the child[ren] to [the parent's] care and advising the parent atappropriate intervals of the child[ren]'s progress and development" (Matter of Hailey ZZ. [RickyZZ.], 19 NY3d 422, 429 [2012], quoting Matter of Star Leslie W., 63NY2d 136, 142 [1984]; see Social Services Law § 384-b [7] [f]; Matterof James J. [James K.], 97 AD3d at 937). On the other hand, "[w]here a parent isincarcerated, petitioner's duty to facilitate the parental relationship may be satisfied by,among other things, informing the parent of the children's well-being and progress,responding to the parent's inquiries, investigating relatives suggested by the parent asplacement resources, and facilitating communication between the children and theparent" (Matter of Charles K.[Charles L.], 100 AD3d 1308, 1308 [2012]; accord Matter of Arianna I. [Roger I.], 100 AD3d 1281,1285 [2012]; Matter of James J. [James K.], 97 AD3d at 937).
Here, petitioner's caseworker testified that, after the children's removal and beforerespondent was incarcerated on the probation violation, she met with respondent onmultiple occasions, arranged for visits with his children and provided him with updatesas to their placement and their progress. Although respondent lost contact with thecaseworker for extended periods of time after his failure to appear at the treatmentfacility, the caseworker [*3]attempted to communicatewith respondent through letters, visits to his home and telephone calls. Moreover, duringrespondent's subsequent incarceration, the caseworker met with him on several occasionsto discuss the permanency of the children and their progress. She also brought thechildren for visits at the correctional facilities where respondent was located and sentrespondent pictures of the children, report cards and status updates. In addition, thecaseworker explored whether respondent's sister was a possible custodialoption.[FN4]In light of the foregoing, we agree with Family Court's determination that petitioner metits burden of establishing that it made the requisite diligent efforts to facilitaterespondent's relationship with the children (see Matter of Johanna M. [John L.],103 AD3d at 950; Matter of James J. [James K.], 97 AD3d at 937; Matter of Marquise JJ. [JamieKK.], 91 AD3d 1137, 1138-1139 [2012], lv denied 19 NY3d 801[2012]).[FN5]
Next, petitioner was required to demonstrate, "by clear and convincing evidence, thatrespondent failed 'substantially and continuously or repeatedly to maintain contact withor plan for the future of the child[ren], although physically and financially able to do so'for a period of at least one year or 15 out of the most recent 22 months following the datethe children were taken into petitioner's care" (Matter of James J. [James K.], 97AD3d at 938, quoting Social Services Law § 384-b [7] [a]; see Matter ofHailey ZZ. [Rickey ZZ.], 19 NY3d at 429). Notably, respondent's incarceration didnot obviate his obligation "to develop a realistic plan for the children's future"(Matter of Johanna M. [John L.], 103 AD3d at 950; see Matter of James J.[James K.], 97 AD3d at 938; Matter of Hannah T. [Joshua U.], 95 AD3d 1609, 1610[2012], lv denied 19 NY3d 813 [2012]; Matter of Marquise JJ. [JamieKK.], 91 AD3d at 1139-1140), and the record supports Family Court's finding thathe failed to do so.
After the children were removed from respondent's home, he refused to enter thetreatment facility recommended by his probation officer, failed to maintain contact withpetitioner for four out of the five months immediately preceding his incarceration andmissed numerous visits with his children. During his incarceration, respondent's onlyplan for the children was that they be returned to his care, even though it was expectedthat he would be incarcerated for 2 to 6 years. Respondent's belatedsuggestion—made more than a year after the [*4]children's removal—that his girlfriend take custodyof them was neither realistic nor viable.[FN6]Therefore, we discern no basis to disturb Family Court's finding that respondentpermanently neglected the children by failing to realistically plan for their future for atleast one year following their removal (see Matter of Trestin T. [Shawn U.], 82 AD3d 1535, 1537[2011], lv denied 17 NY3d 704 [2011]).
Finally, we reject respondent's contention that Family Court should have entered asuspended judgment in lieu of terminating his parental rights. The evidence adduced atthe dispositional hearing demonstrated that the children had been in the same fosterhomes for over a year, had bonded with their foster parents, who wished to adopt them,and were thriving in their care. The two sets of foster parents knew each other andarranged weekly visits between the children. Moreover, although respondent wasreleased from prison in May 2011 and was living with his girlfriend in her apartment,there was some question as to whether he was receiving the appropriate level oftreatment for his substance abuse problems, and Family Court appropriately took intoaccount his history of relapse, which was the cause of the children's placement in fostercare. In fact, this was not the first time the children had been placed in petitioner'scustody. In our view, notwithstanding respondent's love for and desire to resume custodyof the children, a sound and substantial basis exists for Family Court's determination thatthe children should not remain in limbo and that it was in their best interests to terminaterespondent's parental rights and free them for adoption (see Matter of James J. [JamesK.], 97 AD3d at 939; Matter of Hannah T. [Joshua U.], 95 AD3d at 1611;Matter of Marquise JJ. [Jamie KK.], 91 AD3d at 1137; Matter of Kellcie NN. [SarahNN.], 85 AD3d 1251, 1253 [2011]).
Lahtinen, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the orders areaffirmed, without costs.
Footnote 1: The children's halfsibling—not a child of respondent—resides in the same foster home asCarmen and Joseph.
Footnote 2: Petitioner filed a similarpetition against the children's mother. Family Court ultimately found that the mother hadabandoned the children and terminated her parental rights.
Footnote 3: The children's maternalgrandmother commenced a proceeding seeking custody/visitation of Joannis and thechildren's half sibling. Family Court ultimately dismissed the grandmother's petition andit is not at issue on this appeal.
Footnote 4: The sister initiallyapproached the caseworker about taking the children, but ultimately changed her mind.
Footnote 5: We are unpersuaded bythe argument made at the fact-finding hearing—and again on thisappeal—that diligent efforts were not demonstrated because petitioner did notinvestigate his then girlfriend as a possible suitable custodian for the children. Thisperson was not a relative, certified foster parent or even respondent's girlfriend when thechildren were removed from respondent's care and was described as a family friend whohad babysat for the children on a few occasions several years earlier. Under thesecircumstances, we agree with petitioner that the failure to explore this person as apossible option for assuming custody of the children did not preclude a finding thatpetitioner exercised the requisite diligent efforts (see Matter of Hailey ZZ. [Ricky ZZ.], 85 AD3d 1265,1266 [2011], affd 19 NY3d 422 [2012]).
Footnote 6: The girlfriend filed acustody petition, but Family Court dismissed it.