| Matter of Imani M. |
| 2009 NY Slip Op 03174 [61 AD3d 870] |
| April 21, 2009 |
| Appellate Division, Second Department |
| In the Matter of Imani M., a Child Alleged to be PermanentlyNeglected. Dutchess County Department of Social Services, Respondent; Derrick J.,Appellant. |
—[*1] Ronald L. Wozniak, County Attorney, Poughkeepsie, N.Y. (Richard A. Ott of counsel), forrespondent. Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), attorney for thechild.
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 disposition of the FamilyCourt, Dutchess County (Forman, J.), entered January 25, 2008, which, upon a fact-finding orderof the same court dated January 25, 2008, made after a hearing, finding that he had permanentlyneglected the subject child, terminated his parental rights and transferred guardianship andcustody of the child to the Dutchess County Department of Social Services for the purpose ofadoption. The notice of appeal from the fact-finding order is deemed to be a notice of appealfrom the order of disposition (see CPLR 5512 [a]). The appeal from the order ofdisposition brings up for review the fact-finding order.
Ordered that the order of disposition is reversed, on the law, without costs or disbursements,and the matter is remitted to the Family Court, Dutchess County, for a dispositional hearing inaccordance herewith.
Contrary to the father's contention, the evidence presented at the fact-finding hearingestablished that the petitioner, Dutchess County Department of Social Services (hereinafter theagency), made diligent [*2]efforts to encourage and strengthenthe parent-child relationship (see Social Services Law § 384-b [7] [a]). Uponlearning his identity, the agency contacted the father, who was incarcerated, kept him advisedhim of the child's progress, reminded him of the need to find a resource for the care of the child,and explored the possibility of having a paternal aunt, or one of the other individuals suggestedby the father, care for the child while he was incarcerated (see Matter of Jeremy D.R., 40 AD3d 764, 765 [2007]; Matter of "Female" V., 21 AD3d1118, 1119 [2005]). Moreover, the finding of permanent neglect was supported by clear andconvincing evidence that the father failed provide a "realistic and feasible" plan for the child'sfuture, as the paternal aunt, and the father's suggested alternative caregivers, proved not to beviable custodial resources (Social Services Law § 384-b [7] [c]; see Matter of StarLeslie W., 63 NY2d 136, 143 [1984]; Matter of Love Russell J., 7 AD3d 799, 800 [2004]; Matter of Baby Girl C., 1 AD3d593, 594 [2003]; Matter of Dominique S., 276 AD2d 367, 368 [2000]).
Nevertheless, the matter must be remitted to the Family Court, Dutchess County, for adispositional hearing, as it was improper for the Family Court to fail to hold such a hearing in theabsence of the consent of the parties (see Family Ct Act § 625 [a]; Matter ofOrange County Dept. of Social Servs. [Edward L.], 250 AD2d 853 [1998]; Matter ofDepartment of Social Servs. v Janna C., 237 AD2d 603, 605 [1997]).
The father's remaining contention is not properly before this Court. Skelos, J.P., Fisher,Miller and Eng, JJ., concur.