| Matter of Angelina BB. (Miguel BB.) |
| 2011 NY Slip Op 08871 [90 AD3d 1196] |
| December 8, 2011 |
| Appellate Division, Third Department |
| In the Matter of Angelina BB., a Child Alleged to be PermanentlyNeglected. Schenectady County Department of Social Services, Respondent; Miguel BB.,Appellant. |
—[*1] Ursula E. Hall, Schenectady County Department of Social Services, Schenectady, forrespondent. Diane M. Herrmann, Niskayuna, attorney for the child.
Spain, J. Appeal from an order of the Family Court of Schenectady County (Assini, J.),entered December 22, 2010, which, among other things, granted petitioner's application, in aproceeding pursuant to Social Services Law § 384-b, to adjudicate Angelina BB. to be apermanently neglected child, and terminated respondent's parental rights.
Respondent, the father of a daughter born in 2005, appeals from an order of Family Courtfinding the child to be permanently neglected and terminating respondent's parental rights. Wenow affirm.
In order to establish permanent neglect, the petitioner is required to prove, by clear andconvincing evidence, that it made diligent efforts to strengthen and encourage the parent-childrelationship and that, despite those efforts, the respondent failed to maintain contact with the[*2]child or plan for the child's future for a period of one year or15 of the most recent 22 months (see Family Ct Act § 614 [1] [c], [d]; SocialServices Law § 384-b [4] [d]; [7] [a]; Matter of Tailer Q. [Melody Q.], 86 AD3d 673, 674 [2011]; Matter of Tyler LL. [Deborah KK.], 84AD3d 1465, 1465 [2011]). A review of the record reveals that petitioner has met its burdenof establishing that the child was permanently neglected.
Initially, petitioner has demonstrated that it made diligent efforts to strengthen respondent'srelationship with his daughter. Respondent is a heroin addict. The child was removed from hiscare 10 months after her birth and has continually been in foster care since that time. During therelevant time period—15 of the 22 months preceding the petition—caseworkersarranged weekly visitation with respondent and, even after he moved outside of the county,continued to bring the child to him for visitation. Respondent was also given bus tokens tofacilitate his attendance at visits and was provided with parenting training and counseling byCarver Community Center through its Foster Care Prevention Program. Despite theseaccommodations, respondent missed nine visits during the relevant time period and failed tonotify petitioner of his impending absence on four of those occasions. Petitioner also facilitatedsubstance abuse treatment for respondent, spoke to providers of the various treatment programshe was enrolled in to establish an appropriate level of care and undertook a service plan review tocoordinate the programs and treatment he was receiving so that he could attain certain goals.Under these circumstances, we find that petitioner established by clear and convincing evidencethat it made diligent efforts to assist respondent in overcoming the problems that separated himfrom his child (see Social Services Law § 384-b [7] [f]; Matter of Nicole K. [Melissa K.], 85AD3d 1231, 1232 [2011]; Matter ofKaiden AA. [John BB.], 81 AD3d 1209, 1210 [2011]).
Petitioner also met its burden of establishing that respondent failed to plan for the future ofthe child by taking "such steps as may be necessary to provide an adequate, stable home andparental care for the child within a period of time which is reasonable under the financialcircumstances available to the parent" (Social Services Law § 384-b [7] [c]; see Matterof Nicole K. [Melissa K.], 85 AD3d at 1232-1233). During the relevant time period,respondent relapsed into drug use, enrolled in, but failed to complete, several substance abusetreatment programs, and was convicted of possessing and selling a prescription drug. He alsorefused to discontinue his relationship with a woman who has a drug addiction despite therepeated warnings of several caseworkers about the increased dangers of relapse while dating herand his acknowledgment that she is a bad influence. Tellingly, when advised that his relationshipwith his girlfriend could negatively impact his efforts at reunification with his daughter, headvised several caseworkers that he would "take his chances." Based on this evidence andaccording deference to Family Court's credibility determinations, we hold that the court properlyfound that the child was permanently neglected and terminated respondent's parental rights (see Matter of Shania D. [Peggy E.], 82AD3d 1513, 1514 [2011]; Matter ofGerald BB., 51 AD3d 1081, 1084-1085 [2008], lv denied 11 NY3d 703 [2008]).
We also reject respondent's suggestion that Family Court abused its discretion in denying hisapplication for a suspended judgment. "In rendering a disposition, the overriding concern is thebest interests of the child[ ]" (Matter ofNazelle RR. [Lisa RR.], 85 AD3d 1253, 1255 [2011], lv denied 17 NY3d 710[2011]). Here, the child had been in the same foster home for over four years, her mother'sparental rights have also been terminated and her foster mother intends to adopt her. Althoughrespondent recently enrolled in new programs where he is having some success fighting hisaddiction, he has squandered such opportunities in the past and his testimony in this proceedingconcerning his intentions to continue his relationship with his [*3]girlfriend confirms that he continues to place his own interestsabove those of his daughter. Accordingly, we discern no abuse of discretion in Family Court'sdecision to terminate respondent's parental rights rather than issue a suspended judgment (seeMatter of Nazelle RR. [Lisa RR.], 85 AD3d at 1255; Matter of Kayla KK. [Tracy LL.], 68 AD3d 1207, 1208-1209[2009], lv denied 14 NY3d 707 [2010]).
Mercure, A.P.J., Lahtinen, Malone Jr. and Egan Jr., JJ., concur. Ordered that the order isaffirmed, without costs.