| Matter of Anastasia FF. |
| 2009 NY Slip Op 07549 [66 AD3d 1185] |
| October 22, 2009 |
| Appellate Division, Third Department |
| In the Matter of Anastasia FF. and Another, Children Alleged to bePermanently Neglected. Broome County Department of Social Services, Respondent; RalphAA., Appellant. |
—[*1] Kuredin V. Eytina, Broome County Department of Social Services, Binghamton, forrespondent. Daniel L. Seiden, Law Guardian, Endicott.
Kavanagh, J. Appeal from an order of the Family Court of Broome County (Charnetsky, J.),entered January 12, 2008, which granted petitioner's application, in a proceeding pursuant toSocial Services Law § 384-b, to adjudicate Anastasia FF. and Ralph FF. to be permanentlyneglected children, and terminated respondent's parental rights.
In September 2005, petitioner filed a petition alleging that respondent neglected his child(born in 2005), and Family Court issued an order directing the child's temporary removal andplacement in petitioner's custody.[FN1]The child was subsequently adjudicated a neglected child [*2]andher placement with petitioner was continued. Meanwhile, respondent was placed under thesupervision of petitioner and was required to actively participate in mental health evaluationsand partake in other services as recommended and provided by petitioner. In 2006, while thisprocess was ongoing, respondent and the child's mother had a son who was voluntarily placedwith petitioner immediately after his birth.
In February 2008, petitioner filed a permanent neglect petition alleging that, despite itsdiligent efforts, respondent continued to demonstrate that he was unable or unwilling to plan forhis children's future despite being physically and financially able to do so (see SocialServices Law § 384-b [7] [a]). Based on evidence introduced during the fact-finding anddispositional hearings, Family Court found that the children were permanently neglected,concluded that it was in their best interests that respondent's parental rights be terminated andordered that the children be freed for adoption. Respondent now appeals.
Respondent claims that petitioner did not make diligent efforts to encourage and strengthenhis relationship with the children (see Social Services Law § 384-b [7] [a]; Matter of Jasper QQ., 64 AD3d1017, 1020 [2009], lv denied 13 NY3d 706 [2009]; Matter of Laelani B., 59 AD3d880, 881 [2009]) and, in that regard, points to the fact that while he was incarcerated,petitioner made no arrangement for the children to visit with him. Initially, we note theobvious—such visits are not required, particularly where the children are very young andtrips to a penal institution would not be in their best interests (see Social Services Law§ 384-b [7] [f] [5]; compareMatter of Gerald BB., 51 AD3d 1081 [2008], lv denied 11 NY3d 703 [2008]).In addition, petitioner's caseworker provided respondent with updates as to the children'sprogress and condition during periodic visits with him while he was incarcerated and arrangedfor him to have weekly visits with the children. It also sought to provide him with counselingand enrolled respondent in the Family and Children's Domestic Violence Batterer's Group. Byproviding these services, petitioner established, by clear and convincing evidence, that it "maderelevant and meaningful efforts to assist respondent in resolving the circumstances that led to theremoval of the children in order to reunite the family" (Matter of Eric G., 59 AD3d 785, 786 [2009]; see Matter of Alaina E., 59 AD3d882, 884-885 [2009], lv denied 12 NY3d 710 [2009]; Matter of Isaiah F., 55 AD3d1004, 1004 [2008]).
We also note that, during his most recent incarceration, respondent failed to successfullycomplete programming designed to address his propensity for violence, which was deemed vitalto him becoming a proper parent for his children. Under the circumstances, respondent'spersistent "failure to correct the conditions that led to the removal of the child[ren]" amounts to a"failure to plan for the child[ren's] future" (Matter of Destiny CC., 40 AD3d 1167, 1169 [2007] [internalquotation marks and citations omitted]) which, in turn, supports Family Court's finding thatpetitioner established by clear and convincing evidence that respondent permanently neglectedhis children (see Matter of KaytlinTT., 61 AD3d 1085, 1087 [2009]; Matter of Alaina E., 59 AD3d at 886;Matter of Laelani B., 59 AD3d at 882).
Finally, respondent claims that Family Court should have suspended its judgmentterminating his parental rights and provided him with another opportunity to demonstrate hiswillingness, as well as his ability, to properly care for his children. While a suspended judgmentis a possible alternative to the termination of parental rights, it will only be adopted if it has been[*3]shown to be in the child's best interests and where the parent,under the facts presented, has clearly demonstrated that they deserve another opportunity toshow that they have " 'the ability to be a fit parent' " (Matter of Isaiah F., 55 AD3d at1006, quoting Matter of Angela LL., 287 AD2d 823, 824 [2001]; see Family CtAct § 631 [b]). Here, respondent has not only been incarcerated for much of the time hischildren have been placed with petitioner, but he has failed to responsibly address the issues thatled to their removal and their placement in foster care.[FN2]As a result, Family Court had a sound and substantial basis for its decision not to suspend itsjudgment and that termination of respondent's parental rights was in the children's best interests(see Matter of Laelani B., 59 AD3d at 882; Matter of Angelica VV., 53 AD3d 732, 733-734 [2008]; Matter of Raine QQ., 51 AD3d1106, 1106 [2008], lv denied 10 NY3d 717 [2008]).
Mercure, J.P., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote 1: The neglect petition also namedthe child's mother as a respondent. The mother eventually consented to an order terminating herparental rights.
Footnote 2: One of these periods ofimprisonment was as the result of respondent stabbing the children's mother with a knife.