| Matter of Eric L. |
| 2008 NY Slip Op 04175 [51 AD3d 1400] |
| May 2, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Eric L., II., an Infant. Cattaraugus CountyDepartment of Social Services, Respondent; Eric L., Sr., Appellant, et al.,Respondent. |
—[*1] Stephen J. Riley, Olean, for petitioner-respondent. Michael J. Sullivan, Law Guardian, Fredonia, for Eric L., II.
Appeal from an order of the Family Court, Cattaraugus County (Michael L. Nenno, J.),entered May 8, 2007 in a proceeding pursuant to Social Services Law § 384-b. The order,insofar as appealed from, terminated the parental rights of respondent Eric L., Sr. on the groundof permanent neglect.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order terminating his parental rights on the ground ofpermanent neglect and freeing his child for adoption, respondent father contends that FamilyCourt denied him the right to due process by conducting the dispositional hearing in his absence.Because "[t]he child whose guardianship and custody is at stake also has a fundamental right to aprompt and permanent adjudication" (Matter of James Carton K., 245 AD2d 374, 377[1997], lv denied 91 NY2d 809 [1998]; see Matter of Raymond Dean L., 109AD2d 87, 90 [1985]), " '[a] parent's right to be present for fact-finding and dispositional hearingsin termination cases is not absolute' " (Matter of Giovannie M.-V., 35 AD3d 1244, 1245 [2006]; seeJames Carton K., 245 AD2d at 377; see generally Raymond Dean L., 109 AD2d at88). The father, who was incarcerated at the time of the fact-finding hearing, was present at thathearing and testified that he planned to place the child with his brother while he was incarcerated.Petitioner had previously determined, however, that placement of the child with the father'sbrother was an unsuitable arrangement, and the record establishes that, at the dispositionalhearing, the father's attorney questioned petitioner's caseworker concerning petitioner's efforts todetermine whether there were any suitable relatives of the father with whom the child could beplaced. Although, in view of the incarceration of the father at the time of the dispositionalhearing, it would have been preferable for the court to order that he be produced for the hearingor to arrange for his participation by telephone (see Matter of Danielle M., 26 AD3d 748 [2006], lv denied7 NY3d 703 [2006]; Matter ofRobert David L., 7 AD3d 529, 530 [2004], lv denied 3 NY3d 606 [2004]), therecord nevertheless establishes that "the [father's] attorney . . . vigorouslyrepresented [his] interests at the hearing[ ]" (Robert David L., 7 AD3d at 530).[*2]"Consequently, [the father] . . . cannot be said to havebeen prejudiced by his absence from the hearing[ ]" (Matter of Curtis N., 288 AD2d 774,776 [2001], lv denied 97 NY2d 610 [2002]).
We reject the further contention of the father that petitioner failed to establish by clear andconvincing evidence that it had exercised diligent efforts to encourage and strengthen theparent-child relationship both prior to and during his incarceration (see Social ServicesLaw § 384-b [7] [a]; Matter of Gregory B., 74 NY2d 77, 86-87 [1989], reargdenied sub nom. Willie John B., 74 NY2d 880 [1989]; Matter of Darlene L., 38 AD3d 552, 554-555 [2007]). "Diligentefforts include reasonable attempts at providing counseling, scheduling regular visitation with thechild, providing services to the parents to overcome problems that prevent the discharge of thechild into their care, and informing the parents of their child's progress" (Matter of JessicaLynn W., 244 AD2d 900, 900-901 [1997]; see Social Services Law § 384-b[7] [f]). Petitioner is not, however, "charged with a guarantee that the parent succeed inovercoming his or her predicaments" (Matter of Sheila G., 61 NY2d 368, 385 [1984];see Matter of Jamie M., 63 NY2d 388, 393 [1984]), and "[p]arents must themselvesassume a measure of initiative and responsibility" (Jamie M., 63 NY2d at 393).
With respect to the period of time prior to the father's incarceration, petitioner'scaseworker testified that petitioner had developed a plan for the father that included supervisedvisitation, mental health and substance abuse counseling, parenting classes, and attendance at thechild's medical appointments. That plan constituted the requisite diligent efforts to encourage andstrengthen the relationship of the father with the child prior to the father's incarceration.Petitioner established that the father did not meaningfully participate in the substance abuse andmental health counseling or the parenting classes and, contrary to the further contention of thefather, petitioner had no duty to modify the plan when it became apparent that the father did notmake reasonable efforts to avail himself of the services offered by petitioner.With respect to the period of time during the father's incarceration, we note that thefather is correct that petitioner's obligation to exercise diligent efforts to encourage andstrengthen the parent-child relationship includes "making suitable arrangements with acorrectional facility and other appropriate persons for an incarcerated parent to visit the childwithin the correctional facility, if such visiting is in the best interests of the child" (SocialServices Law § 384-b [7] [f] [5]). Petitioner is relieved of its obligation to exercise diligentefforts, however, when "[a]n incarcerated parent has failed on more than one occasion whileincarcerated to cooperate with an authorized agency in its efforts to assist such parent to plan forthe future of the child" (§ 384-b [7] [e] [ii]; see Matter of Yvonne N., 6 AD3d 769, 770 [2004], lv denied3 NY3d 604 [2004]). Here, the father indicated by letter to petitioner's caseworker that hehad some relatives, including his brother, with whom the child could be placed while he wasincarcerated. When the caseworker asked the father to provide her with contact information forthose relatives, the father never replied. We thus conclude that petitioner was relieved of itsobligation to exercise diligent efforts while the father was incarcerated, based on the father'sfailure to cooperate with petitioner during that period of time (see Yvonne N., 6 AD3d at770). Present—Martoche, J.P., Centra, Lunn, Fahey and Gorski, JJ.