| Matter of Jamel Raheem B. (Vernice B.) |
| 2011 NY Slip Op 08354 [89 AD3d 933] |
| November 15, 2011 |
| Appellate Division, Second Department |
| In the Matter of Jamel Raheem B. Nassau County Department of SocialServices, Respondent; Vernice B., Appellant. (Proceeding No. 1.) In the Matter of Jamel B. NassauCounty Department of Social Services, Respondent; Vernice B., Appellant. (Proceeding No. 2.) |
—[*1] John Ciampoli, County Attorney, Mineola, N.Y. (Joseph A. Kellermann of counsel), forrespondent. Geanine Towers, Brooklyn, N.Y., Attorney for the Child.
In a child neglect proceeding pursuant to Family Court Act article 10, and a related proceedingpursuant to Social Services Law § 384-b to terminate parental rights, the mother appeals from(1) an order of the Family Court, Nassau County (Dane, J.), dated December 18, 2009, and (2) anorder of fact-finding and disposition of the same court dated May 11, 2010, which, after fact-findingand dispositional hearings, found that she had permanently neglected the subject child, terminated herparental rights as to the subject child, and placed the child in the guardianship and custody of theNassau County Department of Social Services for the purpose of adoption.
Ordered that the appeal from the order dated December 18, 2009, is dismissed as abandoned,without costs or disbursements; and it is further,
Ordered that the order of fact-finding and disposition dated May 11, 2010, is affirmed, withoutcosts or disbursements.
"In proceedings to terminate parental rights based on permanent neglect, the agency must establishas a threshold matter that it made diligent efforts to encourage and strengthen the parental relationship"(Matter of Joseph Albert R., 2 AD3d 528, 528 [2003]; see Matter of Sheila G., 61NY2d 368, 380-381 [1984]). However, evidence of diligent efforts on the part of the agency [*2]are not required when "[t]he parent has failed for a period of six monthsto keep the agency apprised of his or her location, provided that the court may consider the particulardelays or barriers an incarcerated parent . . . may experience in keeping the agencyapprised of his or her location" (Social Services Law § 384-b [7] [e] [i]).
Here, the mother admitted that she had no contact with the Nassau County Department of SocialServices (hereinafter the DSS) from sometime in September 2006, until April 2007. Accordingly, theFamily Court properly found that, notwithstanding the mother's incarceration during a portion of thisperiod of time, the DSS's obligation to demonstrate diligent efforts was excused, since the whereaboutsof the mother were unknown for six months or more, and the mother failed to keep the DSS apprisedof her whereabouts (see Social Services Law § 384-b [7] [a]; Matter of Leavon Marvin B., 60 AD3d941 [2009]; Matter of KimberlyVanessa J., 37 AD3d 185, 186 [2007]).
As to the finding of permanent neglect (see Social Services Law § 384-b [7] [c]),"[a]t a minimum, a parent's duty to plan for the future of his or her child requires the parent to correctthe problems that led to the child being removed from the parent's care" (Matter of MaldrinaR., 219 AD2d 723, 723 [1995]; see Matter of Nathaniel T., 67 NY2d 838, 840 [1986];Matter of Leon RR, 48 NY2d 117, 125 [1979]; Matter of Leon G., 7 AD3d 524, 525 [2004]).
Here, the child was removed from the mother's care in June 2006 because of the mother's historyof drug use. It is undisputed that in September 2006, the mother left, without having completed drugrehabilitation programs at the Family Treatment Court and the Family and Children's Association thatshe had been attending, and she relapsed into drug use. Ultimately, she was arrested for selling drugs.By failing to complete the rehabilitative services to which she had been referred by the DSS, the motherfailed to plan for the child during the period from September 2006 to February 2007 (seeSocial Services Law § 384-b [7] [c]; Matter of David O.C., 57 AD3d 775 [2008]; Matter of LeonG., 7 AD3d at 525).
The evidence supported the Family Court's finding that the mother's plan of obtaining an apartmentand finding a job as a chef was, at the time of the finding of neglect, made on May 8, 2009, not"realistic and viable." Based on that finding, and the mother's failure, while incarcerated, to "provide anyrealistic and feasible alternative to having [the child] remain in foster care until [her earliest] release fromprison" (Matter of Love Russell J., 7AD3d 799, 800 [2004] [internal quotation marks omitted]), clear and convincing evidencesupported the Family Court's determination that the mother permanently neglected the child by failing toadequately plan for his future (see Matter ofBaby Girl C., 1 AD3d 593 [2003]; Matter of C. Children, 253 AD2d 554 [1998]).
The Family Court's determination that it was in the child's best interests to be adopted by the fostermother "is supported by the requisite preponderance of the evidence" (Matter of Travis DevonB., 295 AD2d 205, 205 [2002]). The mother's recent achievements, while laudable, "wereinsufficient to warrant a suspended judgment, given the absence of any real relationship between [herand the child] and the bond that the [child] ha[d] developed with the competent foster mother," whohad been caring for him virtually his entire life (Matter of C. Children, 253 AD2d at 555; see Matter of Keynyha Shante Marie B. [CraigB.], 76 AD3d 1063 [2010]; Matterof Tyria W., 41 AD3d 859 [2007]). Under these circumstances, it would not have served thechild's best interests to prolong foster care unnecessarily (see Matter of Angelica W. [Dorothy W.], 80 AD3d 772 [2011];Matter of Tyria W., 41 AD3d at 860; Matter of Paul Michael G., 36 AD3d 541 [2007]). Rivera, J.P., Eng,Belen and Austin, JJ., concur.