| Matter of Samantha K. |
| 2009 NY Slip Op 00874 [59 AD3d 1012] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Samantha K., an Infant. Oneida CountyDepartment of Social Services, Respondent; Kenneth K., Appellant. |
—[*1] Denise J. Morgan, Utica, for petitioner-respondent. Karen Stanislaus-Fung, Law Guardian, Clinton, for Samantha K.
Appeal from an order of the Family Court, Oneida County (James R. Griffith, J.), enteredNovember 23, 2007 in a proceeding pursuant to Social Services Law § 384-b. The order,among other things, transferred respondent's guardianship and custody rights to petitioner.
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 petitionerfailed to establish by clear and convincing evidence that it exercised diligent efforts to encourageand strengthen the parent-child relationship (see Social Services Law § 384-b [7][a]). Contrary to the father's contention, however, petitioner was relieved of that obligation basedon the father's failure "on more than one occasion while incarcerated to cooperate with anauthorized agency in its efforts to assist such parent to plan for the future of the child" (§384-b [7] [e] [ii]; see Matter of EricL., 51 AD3d 1400, 1403 [2008], lv denied 10 NY3d 716 [2008]). Further, weconclude that Family Court properly determined that the child was permanently neglected basedon the father's failure to plan for the child's future (see Social Services Law §384-b [7] [a]). Even where an incarcerated parent makes an effort to develop a feasible plan forthe future of his or her child, a finding of permanent neglect is appropriate where, as here, noalternative to foster care for the duration of the parent's incarceration is provided (see Matterof Paige M.J., 256 AD2d 1150 [1998], lv dismissed 93 NY2d 904 [1999]; Matterof C. Children, 253 AD2d 554 [1998]; see also Matter of Star Leslie W., 63 NY2d136, 142-143 [1984]). We conclude that the court properly determined that termination of thefather's parental rights based upon a finding of permanent neglect, while allowing the father toretain visitation rights, was in the child's best interests (see generally Matter of Bert M., 50 AD3d 1509, 1511 [2008],lv denied 11 NY3d 704 [2008]). Present—Martoche, J.P., Fahey, Green, Pine andGorski, JJ.