| Matter of Jayden XX. (John XX.) |
| 2015 NY Slip Op 02820 [127 AD3d 1286] |
| April 2, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Jayden XX., a Child Alleged to bePermanently Neglected. Cortland County Department of Social Services, Respondent;John XX., Appellant. (Proceeding No. 1.) In the Matter of Justice XX., a Child Allegedto be Permanently Neglected. Cortland County Department of Social Services,Respondent; John XX., Appellant. (Proceeding No. 2.) |
Abbie Goldbas, Utica, for appellant.
Kathleen A. Sullivan, Cortland County Department of Social Services, Cortland, forrespondent.
Donna C. Chin, Ithaca, attorney for the children.
Clark, J. Appeal from an order of the Family Court of Cortland County (Campbell,J.), entered March 7, 2014, which granted petitioner's applications, in two proceedingspursuant to Social Services Law § 384-b, to adjudicate the subject childrento be permanently neglected, and terminated respondent's parental rights.
Respondent is the father of the two children (born in 2011 and 2012) who are thesubject of these proceedings. Just prior to the younger child's birth, a neglect petition wasfiled against respondent, citing domestic violence and drug use. On the day of theyounger child's birth, the child tested positive for cannabis and opiates and both childrenwere placed in petitioner's care and custody. Respondent, who was incarcerated at thetime, later stipulated to a finding of neglect of both children and consented to an ordercontinuing custody of the children with petitioner and requiring him to, among otherthings, participate in any programs offered in prison related to addiction treatment,domestic violence, job skills and parenting. In July 2013, petitioner commenced thesepermanent neglect proceedings. Following a fact-finding hearing, Family Courtadjudicated the children to be permanently neglected and, following a dispositionalhearing, terminated respondent's parental rights.[FN*] Respondent now appeals.
Inasmuch as Family Court's determination that respondent permanently neglected thechildren is supported by clear and convincing evidence, we affirm (see SocialServices Law § 384-b [7] [a]). Contrary to respondent's contention, therecord demonstrates that petitioner made the requisite diligent efforts to encourage andstrengthen the parental relationship. Specifically, petitioner kept respondent—whohas been incarcerated for the vast majority of the children's lives—informed as tothe children's progress and well-being, arranged regular visitation, provided him withphotographs and inquired as to his participation in court-ordered programs related tosubstance abuse, domestic violence, job skills and parenting (see Matter of Britiny U. [TaraS.], 124 AD3d 964, 966 [2015]; Matter of Joannis P. [Joseph Q.], 110 AD3d 1188, 1190[2013], lv denied 22 NY3d 857 [2013]; Matter of Johanna M. [John L.], 103 AD3d 949, 950[2013], lv denied 21 NY3d 855 [2013]). Although respondent argues that heshould have been afforded visitation with the children during his court appearances aswell, there is no indication in the record that he requested such visitation. Thus,petitioner satisfied its obligation to provide diligent efforts. Despite those efforts,respondent nonetheless failed to develop a realistic plan for the children's future. He hasfailed to complete the necessary programs, he has no plan for obtaining employment orsuitable housing upon his release from prison and his suggested placement resourcerefused to care for the children. Accordingly, we agree with Family Court's conclusionthat the children were permanently neglected (see Matter of Johanna M. [JohnL.], 103 AD3d at 950-951; Matter of Hailey ZZ. [Ricky ZZ.], 85 AD3d 1265, 1266[2011]).
Family Court did not err in terminating respondent's parental rights to free thechildren for adoption. Respondent has been incarcerated throughout most of thechildren's lives and was awaiting the imposition of yet another prison sentence at the timeof the dispositional hearing. Moreover, he has been unwilling to complete the necessaryprograms to address his substance abuse problems and has no viable plan for caring forthe children in the future. Although respondent argues that it is unclear from the recordwhether the children's current foster parents intend to adopt them, the lack of such anintention is not determinative (see e.g. Matter of Raine QQ., 51 AD3d 1106, 1106 [2008],lv denied 10 NY3d 717 [2008]). Under these circumstances, we conclude thatFamily Court properly found that it was in the children's best interests to terminaterespondent's parental rights and free them for adoption (see Matter of Britiny U. [TaraS.], 124 AD3d at 967).
Peters, P.J., McCarthy and Rose, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *:The children's mothervoluntarily surrendered her parental rights.