| Matter of Marquise JJ. (Jamie KK.) |
| 2012 NY Slip Op 00265 [91 AD3d 1137] |
| Jnury 19, 2012 |
| Appellate Division, Third Department |
| In the Matter of Marquise JJ., a Child Alleged to be PermanentlyNeglected. Cortland County Department of Social Services, Respondent; Jamie KK.,Appellant. |
—[*1] Stacy L. Banewicz, Cortland County Department of Social Services, Cortland, forrespondent. Randolph V. Kruman, Cortland, attorney for the child.
Garry, J. Appeal from an order of the Family Court of Cortland County (Campbell, J.),entered January 24, 2011, which granted petitioner's application, in a proceeding pursuant toSocial Services Law § 384-b, to adjudicate Marquise JJ. to be a permanently neglectedchild, and terminated respondent's parental rights.
Respondent, who is currently incarcerated, is the father of a child (born in 2004) who wasremoved from his mother's care two weeks after his birth due to her admission to a psychiatricfacility. The child was subsequently placed in foster care with respondent's aunt, who resides inQueens County and had previously acted as respondent's foster parent. During the child'splacement with the aunt, respondent resided elsewhere but visited the child. The child wasreturned to the mother's care in 2006 and, in 2007, the mother relocated with the child toCortland County, allegedly without telling respondent where she had gone.[*2]
Petitioner's child support unit began attempting to locaterespondent in early 2008.[FN1] The child was removed from the mother's care in August 2008 and placed in a foster homewhere he continues to reside. In October 2008, petitioner located respondent at a correctionalfacility in Queens County and advised him of the child's foster care placement. Shortly thereafter,the aunt telephoned petitioner's caseworker on respondent's behalf, but advised that she was notavailable to act as a resource for the child at that time. In November 2008, respondent telephonedpetitioner to ask that the child be placed with his girlfriend and to request telephone contact withthe child. Petitioner's caseworker arranged for respondent to call the child at the foster home. Hedid so between November 2008 and February 2009, but, after being transferred to a new facilitythat required inmates to place collect calls, rather than paying for them through inmate accounts,respondent ceased making phone calls to the child. In July 2009, respondent wrote to petitioneradvising that he would be incarcerated for two years[FN2] and requesting that the child be placed with the aunt. The caseworker followed up, but the auntagain declined to accept the child's placement. In February 2010, respondent wrote to petitioneradvising that he had been moved to a different correctional facility seven months earlier. He senttwo cards to the child in early 2010, but made no further contact thereafter with either the childor petitioner.
Petitioner commenced this permanent neglect proceeding in September 2010, seeking toterminate respondent's parental rights.[FN3] Family Court conducted a fact-finding hearing and determined that the child was permanentlyneglected. After a dispositional hearing, respondent's parental rights were terminated.Respondent appeals.
In seeking to terminate respondent's parental rights on the ground of permanent neglect,petitioner was required to demonstrate by clear and convincing evidence that he "failed tomaintain contact with or plan for the future of [the] child for a period of one year after the childcame into the custody of an authorized agency notwithstanding the agency's diligent efforts toencourage and strengthen the parental relationship" (Matter of Star Leslie W., 63 NY2d136, 140 [1984]; see Social Services Law § 384-b [7] [a]; Matter of Hailey ZZ. [Ricky ZZ.], 85AD3d 1265, 1266 [2011], lv granted 17 NY3d 709 [2011]; Matter of Lawrence KK. [LawrenceLL.], 72 AD3d 1233, 1234 [2010], lv denied 14 NY3d 713 [2010]). FamilyCourt correctly determined that petitioner made the requisite diligent efforts to facilitaterespondent's relationship with the child. Even before respondent was adjudicated the child'sfather, petitioner sought him out, notified him of the child's placement in foster care, regularlysent the child's permanency reports, initiated correspondence to inquire about respondent'ssituation and plans, and responded to his inquiries. When possible, petitioner facilitatedtelephone contact between respondent and the child; when such contact was not feasible,petitioner's caseworker encouraged respondent to maintain contact with the child by mail.Although respondent now contends that petitioner should have arranged for the child to visit himduring his incarceration, he did not request such [*3]visits, norwere they required; in light of the child's age and the distance to the correctional facility,visitation was not in the child's best interests (see Social Services Law § 384-b [7][f] [5]; Matter of Kaiden AA. [JohnBB.], 81 AD3d 1209, 1210 [2011]; Matter of Anastasia FF., 66 AD3d 1185, 1186 [2009], lvdenied 13 NY3d 716 [2010]). Thus, petitioner established by clear and convincing evidencethat it made "affirmative, repeated and meaningful efforts to restore the parent-child relationship"(Matter of Alycia P., 24 AD3d1119, 1120 [2005]; see Matter ofVictorious LL. [Jonathan LL.], 81 AD3d 1088, 1090 [2011], lv denied 16 NY3d714 [2011]).
Next, petitioner was required to show that, despite its diligent efforts, respondent failed tomaintain contact with the child or to plan for his future (see Social Services Law §384-b [7] [a], [c]; Matter of Jasmine F.[Jeffrey G.], 74 AD3d 1396, 1398 [2010]). Respondent's incarceration did not excusehim from the obligation to develop a realistic plan for the child (see Matter of Antonio EE. v SchoharieCounty Dept. of Social Servs., 38 AD3d 944, 946-947 [2007], lv denied 8 NY3d813 [2007]; Matter of Curtis N., 290 AD2d 755, 757 [2002], lv dismissed 97NY2d 749 [2002]). Respondent made some attempts to maintain contact with the child, asoutlined above; however, these efforts were sporadic and inconsistent. The only telephonecontact with the child occurred during a brief period of several months, and respondent mailedonly two cards to the child.[FN4] He initiated contact with petitioner only once by telephone and twice by letter, and he failed toprovide petitioner with prompt, accurate information as to the length and locations of hisincarceration. Further, he was unable to formulate timely and realistic plans for the child'splacement pending his release (see Matter of Hailey ZZ. [Ricky ZZ.], 85 AD3d at 1266).His only suggested resources were the aunt, who twice declined to care for the child, and agirlfriend who had no relationship with the child and was identified only by a first name.Accordingly, we find no basis to disturb Family Court's conclusion that respondent permanentlyneglected the child by failing to plan for his future (see Matter of Trestin T. [Shawn U.], 82 AD3d 1535, 1537 [2011],lv denied 17 NY3d 704 [2011]; Matter of Lawrence KK. [Lawrence LL.], 72AD3d at 1235).
Finally, respondent contends that Family Court should have granted a suspended judgmentand placed the child with his aunt pending his release from prison. A dispositional orderfollowing an adjudication of permanent neglect must be based on the child's best interests, andthere is no presumption that those interests will be promoted by any particular disposition(see Family Ct Act §§ 631, 633; Matter of Star Leslie W., 63 NY2dat 147-148; Matter of George M., 48AD3d 926, 929 [2008]). A suspended judgment may be granted if the court determines that"it is in the best interests of the child to allow the parent additional time to improve parentingskills and demonstrate his or her fitness to care for the child" (Matter of Kayla KK. [Tracy LL.], 68 AD3d 1207, 1208 [2009],lv denied 14 NY3d 707 [2010]; see Family Ct Act § 631 [b]; § 633).However, the length of such a suspension is limited to one year, with a one-year extension to begranted only in "exceptional circumstances" (Family Ct Act § 633 [b]). Here, the earliestdate that respondent could potentially be released is December 2012, more than two years afterthe entry of the dispositional order, and his maximum release date is in December 2013. Even if asuspended judgment were allowed for such a protracted period, it would not be in the child's[*4]best interests to add several years to the temporary foster careplacement that has already extended throughout much of his life (see Matter of Hailey ZZ.[Ricky ZZ.], 85 AD3d at 1266-1267). The goal of permanency would not be served byplacement with respondent's aunt, who testified at the dispositional hearing that she could notafford to adopt the child and was only interested in accepting him as a foster child.[FN5] Further, the child had not seen the aunt in several years and no longer had a relationship withher, and placing him in her home several hours away from Cortland County would haveinterfered with his weekly visits with his mother. Finally, the child was reportedly performingwell at school, participating in sports and counseling, and thriving in his foster home, where hehad developed close relationships with the foster parents as well as a former foster child whomthey had adopted. The foster mother testified that they would "gladly" adopt the child if he werefreed for adoption. Accordingly, Family Court's determination that termination of respondent'sparental rights was in the child's best interests is supported by a sound and substantial basis in therecord (see Matter of Nicole K. [MelissaK.], 85 AD3d 1231, 1233 [2011]).
Peters, J.P., Malone Jr., Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Respondent's paternity was laterestablished by an order of filiation entered in Cortland County in May 2009.
Footnote 2: Respondent had initially advisedpetitioner's caseworker that he would be incarcerated for only two months.
Footnote 3: A separate proceeding wascommenced against the mother, who consented in January 2011 to the entry of an order findingpermanent neglect and a suspended judgment for a period of one year.
Footnote 4: Respondent testified that he alsomaintained communication with the child by corresponding with the mother, but clarified that hedid so by such means as asking the mother to greet the child for him rather than by enclosingcards or notes written directly to the child.
Footnote 5: The aunt filed a custody petitionin December 2010, several months after commencement of this termination proceeding. FamilyCourt dismissed the petition when the aunt failed to attend the initial appearance, allegedlybecause of a snowstorm. However, the aunt appeared the following week for the dispositionalhearing and testified that she had previously been certified as a foster parent and was willing toregain that certification in order to accept temporary placement of the child.