| Matter of Shi'ann FF. |
| 2008 NY Slip Op 00389 [47 AD3d 1133] |
| January 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of Shi'ann FF., a Child Alleged to be PermanentlyNeglected. Rensselaer County Department of Social Services, Respondent; Welling GG.,Appellant. |
—[*1] Edward L. Cappellano, Rensselaer County Department of Social Services, Troy, forrespondent. Charles J. Keegan, Law Guardian, Albany.
Mercure, J.P. Appeal from an order of the Family Court of Rensselaer County (Cholakis, J.),entered October 2, 2006, which granted petitioner's application, in a proceeding pursuant toSocial Services Law § 384-b, to adjudicate respondent's child to be permanently neglected,and terminated respondent's parental rights.
In 2002, petitioner removed the subject child (born in 2000) from her mother's custody andplaced the child in foster care after the mother admitted smoking crack cocaine in the presence ofthe child, and then was arrested and incarcerated. Respondent, the child's father, was alsoincarcerated at that time and remained so until December 2006. Notwithstanding hisincarceration, it is undisputed that respondent maintained contact with the child—seekingand obtaining regular visitation, speaking to the child by telephone on a weekly basis, sending thechild more than 200 cards and letters, and providing the foster parents with money to purchase[*2]gifts for the child and to cover the expense of his telephonecalls. During the relevant time period, respondent also agreed with petitioner's plan for the child,which was reunification with the mother.
Nevertheless, in November 2004, petitioner sought to terminate respondent's parental rightsbased on permanent neglect. The mother surrendered her parental rights on the day of thefact-finding hearing in March 2006. Thereafter, Family Court adjudicated the child to bepermanently neglected by respondent and, following a dispositional hearing in June 2006, thecourt terminated respondent's parental rights and freed the child for adoption. Respondentappeals and we now reverse.
The threshold inquiry in a permanent neglect proceeding is whether the petitioning agencyhas met its statutory duty to exercise "diligent efforts to encourage and strengthen the parentalrelationship" (Social Services Law § 384-b [7] [a]; see Matter of Antonio EE. v Schoharie County Dept. of Social Servs.,38 AD3d 944, 945 [2007]). For incarcerated parents, diligent efforts must generally "'include counseling, making suitable arrangements for visitation, . . . and advisingthe parent[s] at appropriate intervals of the child's progress and development' " (Matter ofGregory B., 74 NY2d 77, 86 [1989], quoting Matter of Star Leslie W., 63 NY2d 136,142 [1984]; see Social Services Law § 384-b [7] [f]). While the agency is notrequired to demonstrate diligent efforts "when an incarcerated parent has failed on more than oneoccasion to cooperate with the agency in efforts to assist the parent in planning for the future ofthe child or in efforts to plan and arrange visits with the child" (Matter of Jawan Y., 274AD2d 696, 697 [2000]; see Social Services Law § 384-b [7] [e] [ii]), in our view,petitioner has failed to establish either that it fulfilled the diligent efforts requirement or that theexception to that requirement is applicable here.
Although petitioner did arrange for visitation and kept respondent apprised of the child'sprogress and service plans, it was only through respondent's pro se legal efforts—whichwere stymied by petitioner's instructions to withdraw his initial petition for visitation and file it inan incorrect county—that he was awarded visitation with the child. Moreover, prior to thefiling of the petition against respondent, petitioner's service plan reflected its goal of reuniting thechild with the mother. Respondent agreed with that plan, and it was not until after the filing ofthe petition that he was advised that reunification with the mother was no longer possible andthat he must develop an alternate plan for the child. Under these circumstances, it cannot be saidthat petitioner made diligent efforts to encourage and strengthen the parental relationship prior tofiling the permanent neglect petition (see Matter of Ericka M., 285 AD2d 986, 987[2001]; Matter of Latasha F., 251 AD2d 1005, 1007-1008 [1998]; Matter of JenniferAnn W., 198 AD2d 881, 882 [1993]). Furthermore, in light of petitioner's concessions thatrespondent "religiously" maintained contact with the child and that he agreed with thepermanency plan proffered by petitioner prior to the filing of the petition, it cannot be said that hefailed "to cooperate with the agency in efforts to assist the parent in planning for the future of thechild or in efforts to plan and arrange visits with the child" such that diligent efforts were notrequired (Matter of Jawan Y., 274 AD2d at 697; cf. Matter of Antonio EE. vSchoharie County Dept. of Social Servs., 38 AD3d at 945-946).[FN*][*3]
Peters, Carpinello, Lahtinen and Kane, JJ., concur.Ordered that the order is reversed, on the law, without costs, and petition dismissed.
Footnote *: Given our determination thatpetitioner has not established diligent efforts or an exception, we need not address its argumentthat respondent failed for more than one year to plan for the child's future (see Matter ofSheila G., 61 NY2d 368, 373 [1984]; Matter of Shiann RR., 285 AD2d 762, 765[2001]). Finally, we note that while our decision is grounded in the long established, "strongpublic policy that before the [s]tate may terminate parents' rights it must first attempt tostrengthen familial ties" (Matter of Sheila G., 61 NY2d at 383 [citations omitted]),nothing in our decision should be construed as prohibiting petitioner from commencing a newproceeding pursuant to Social Services Law § 384-b if circumstances that have developedsince the filing of the November 2004 petition so warrant.