| Matter of Leavon Marvin B. |
| 2009 NY Slip Op 02356 [60 AD3d 941] |
| March 24, 2009 |
| Appellate Division, Second Department |
| In the Matter of Leavon Marvin B., Also Known as Leavon B.,Also Known as Leavon W., Appellant. SCO Family of Services et al., Respondents; Pauline B.,Respondent. |
—[*1] Carrieri & Carrieri, P.C., Mineola, N.Y. (Ralph R. Carrieri of counsel), forpetitioner-respondent SCO Family of Services. Karen P. Simmons, Brooklyn, N.Y. (Gina Frey and Barbara Dildine of counsel), attorney forthe child.
In a proceeding pursuant to Social Services Law § 384-b to terminate parental rightson the ground of permanent neglect, the father appeals from an order of fact-finding anddisposition of the Family Court, Kings County (Lim, J.), dated April 28, 2008, which, after afact-finding hearing, found, inter alia, that he permanently neglected the subject child, and after adispositional hearing at which he failed to appear, terminated his parental rights and transferredguardianship and custody of the subject child to the Commissioner of Social Services of the Cityof New York and the petitioner, SCO Family of Services, for the purpose of adoption.
Ordered that the appeal from so much of the order as terminated the father's parental rightsand freed the child for adoption, upon the father's default in appearing at the dispositionalhearing, is dismissed, [*2]without costs or disbursements; and itis further,
Ordered that the order is affirmed insofar as reviewed, without costs or disbursements.
Since the father did not appear at, and his attorney did not participate in, the dispositionalhearing, those portions of the order which terminated the father's parental rights and freed thechild for adoption were entered upon his default and are not appealable (see Matter of JosephKenneth B., 47 AD3d 809 [2008]; Matter of Jessica Dee D., 6 AD3d 435 [2004]).However, because the father was present at the fact-finding hearing, he may appeal from thoseportions of the order which found, inter alia, that he permanently neglected the child (seeMatter of Amber Megan D., 54 AD3d 338 [2008]; Matter of Vanessa M., 263 AD2d542 [1999]).
In a proceeding to terminate parental rights based on permanent neglect, the presentmentagency must establish, as a threshold matter, that it exerted diligent efforts to encourage andstrengthen the parental relationship (see Matter of Sheila G., 61 NY2d 368, 373 [1984]).However, because the incarcerated father failed to keep the agency apprised of his whereaboutsfor at least six months, the agency's obligation to demonstrate diligent efforts was excused(see Social Services Law § 384-b [7] [a], [e] [i]; Matter of Kimberly VanessaJ., 37 AD3d 185 [2007]; Matter of Brittany Noel G., 22 AD3d 754 [2005];Matter of Desire Star H., 202 AD2d 582 [1994]). In any event, after the father contactedthe agency upon his release from prison, the agency made diligent efforts to assist him inmaintaining contact with his child and planning for his future (see Matter of Jonathan R.,30 AD3d 426 [2006]; Matter of Liam Francis P., 26 AD3d 385 [2006]). The fatherfailed to attend more than half the scheduled visitations with his child and neglected to plan forhis future (see Matter of Ailayah Shawneque L., 40 AD3d 1097 [2007]; Matter ofDistiny Angelina N., 18 AD3d 755 [2005]). Accordingly, the Family Court properly made afinding of permanent neglect.
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Rivera, J.P., Ritter, Miller and Belen, JJ., concur.