| Matter of Lawrence KK. (Lawrence LL.) |
| 2010 NY Slip Op 02889 [72 AD3d 1233] |
| April 8, 2010 |
| Appellate Division, Third Department |
| In the Matter of Lawrence KK., a Child Alleged to be PermanentlyNeglected. Albany County Department for Children, Youth and Families, Respondent; LawrenceLL., Appellant. |
—[*1] Raymond E. White, Albany County Department for Children, Youth and Families, Albany,for respondent. Cynthia Feathers, Law Guardian, Saratoga Springs.
Lahtinen, J. Appeals from two orders of the Family Court of Albany County (Duggan, J.),entered May 5, 2009, which, among other things, granted petitioner's application, in a proceedingpursuant to Social Services Law § 384-b, to adjudicate respondent's child to bepermanently neglected, and terminated respondent's parental rights.
In June 2006, petitioner sought, pursuant to Social Services Law § 398, to haveFamily Court declare as destitute the subject child, who was born in 2003 and has Downsyndrome. The child's mother had died in 2006. The maternal grandmother took temporarycustody, but had been unable to care for the child. Respondent, the child's father, had beenincarcerated since December 2004 on convictions for drug-related crimes in both Pennsylvaniaand New York, and he has a conditional release date of April 2010 with a maximum sentenceextending to April 2012. The petition was granted and the child was put in petitioner's custody.The child was [*2]placed with a foster parent who cares for andhas adopted other special needs children. In September 2007, petitioner commenced thisproceeding to terminate respondent's parental rights based on permanent neglect. Following afact-finding hearing, Family Court found the child to be permanently neglected. A dispositionalhearing ensued after which Family Court terminated respondent's parental rights, freeing thechild for adoption. Respondent appeals.
"The threshold inquiry in a permanent neglect proceeding is whether petitioner establishedby clear and convincing evidence that it made diligent efforts to encourage and strengthen theparent-child relationship" (Matter ofAlycia P., 24 AD3d 1119, 1120 [2005] [citations omitted]). The record reflectsextensive contact between petitioner's caseworkers and respondent. He was informed of the needof developing a workable plan for the child's future. The caseworker offered assistance inhelping respondent plan for the child. After respondent supplied names of relatives and friendswho might be able to care for the child during his incarceration, petitioner attempted to contactall such individuals and explored whether anyone would be willing and suitable to provide theneeded care. Correspondence in the record reveals that respondent was kept informed of thechild's health and progress. In light of the child's young age and acute special needs, as well asthe distance to respondent's places of incarceration (including being in prison out of state duringsome of the relevant time), visitation was not required (see Matter of Anastasia FF., 66 AD3d 1185, 1186 [2009], lvdenied 13 NY3d 716 [2010]). While petitioner could have been more diligent in providingtelephonic contact between respondent and the child, the caseworker stated that the child wasessentially nonverbal and, in any event, telephone calls were arranged starting in late 2006 orearly 2007. There is ample evidence in the record to support Family Court's finding of diligentefforts by petitioner.
"The next step is determining whether the parent fulfilled his or her duty to both maintaincontact with the child[ ] and develop a realistic plan for [the child's] future; permanent neglectmay be found upon a default of either duty" (Matter of Antonio EE. v Schoharie County Dept. of Social Servs., 38AD3d 944, 945 [2007] [citations omitted], lv denied 8 NY3d 813 [2007]). "Whetheror not the planning requirement will be deemed satisfied will . . . vary dependingon the facts and circumstances" (Matter of Gregory B., 74 NY2d 77, 87 [1989]), and theunique challenges presented by a child with special needs is a germane consideration (seeMatter of George U., 195 AD2d 718, 719-720 [1993]). Respondent had about four to sixyears remaining on his prison sentences when the child came into the care of petitioner. Atpetitioner's request, respondent supplied petitioner's caseworker with the names of relatives andfriends as possible resources to care for the child. However, the caseworker's investigationrevealed that these individuals were unsuitable for a variety of reasons. For example, one had asubstance abuse history and health issues. Two had child protective services histories. Whilesome expressed initial interest, they subsequently affirmatively declined or simply stoppedresponding to efforts to contact them. Others could not be reached or, if reached, did notrespond. No suitable caregiver was identified by respondent for this special needs child, andmerely leaving the child in foster care for four to six years was not consistent with the goal ofavoiding prolonged foster care. Although respondent arguably showed a good faith effort insupplying names of possible caregivers, " '[g]ood faith alone is not enough; the plan must berealistic and feasible' " (Matter of Gregory B., 74 NY2d at 87, quoting Matter of StarLeslie W., 63 NY2d 136, 143 [1984]). We agree with Family Court that petitioner met itsburden of establishing the lack of a realistic plan by respondent for the child (see Matter ofAntonio EE. v Schoharie County Dept. of Social Servs., 38 AD3d at 946-947; Matter ofJoseph Jerome H., 224 AD2d 224, 225 [1996]).[*3]
Mercure, J.P., Spain, Rose and Stein, JJ., concur.Ordered that the orders are affirmed, without costs.