| Matter of James J. (James K.) |
| 2012 NY Slip Op 05581 [97 AD3d 936] |
| July 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of James J. and Others, Children Alleged to bePermanently Neglected. Broome County Department of Social Services, Respondent; James K.,Appellant. |
—[*1] Thomas P. Coulson, Broome County Department of Social Services, Binghamton, forrespondent. Craig R. Fritzsch, Binghamton, attorney for the children.
Stein, J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered September 15, 2011, which granted petitioner's application, in a proceeding pursuant toSocial Services Law § 384-b, to adjudicate respondent's children to be permanentlyneglected, and terminated respondent's parental rights.
Respondent is the father of the five children at issue here (born in 1999, 2001, 2003, 2004and 2006). Respondent was incarcerated in October 2005. In April 2009, while respondent wasstill incarcerated, the children were removed from the custody of their mother, with her consent,and placed in foster care with maternal relatives. Respondent admittedly knew about thechildren's placement. Although respondent was released from prison in December 2009, he wasreincarcerated on a parole violation in May 2010 and remained incarcerated until May 2011.
In March 2011, petitioner commenced this proceeding pursuant to Social Services Law§ 384-b against, among others, respondent alleging permanent neglect. A fact-findinghearing was held in May 2011 solely with respect to respondent, after which Family Courtdetermined that respondent had permanently neglected the children. Respondent was againreleased from prison shortly thereafter. Following a dispositional hearing in July 2011—atwhich respondent was present but did not testify—Family Court terminated respondent'sparental rights. Respondent now appeals and we affirm.
In a permanent neglect proceeding, the threshold inquiry is whether the agency established,by clear and convincing evidence, that it made "diligent efforts to encourage and strengthen theparental relationship" (Social Services Law § 384-b [7] [a]; see Matter of Jyashia RR. [John VV.],92 AD3d 982, 983 [2012]; Matterof Trestin T. [Shawn U.], 82 AD3d 1535, 1536 [2011], lv denied 17 NY3d 704[2011]). Generally, when a parent is not incarcerated, the agency fulfills its obligation by"offering appropriate services, such as counseling and treatment opportunities, arrangingsupervised visitation and creating a service plan to move towards unification, and encourag[ing]the parent's participation" (Matter ofJames X., 37 AD3d 1003, 1006 [2007]; see Social Services Law § 384-b[7] [f]; Matter of Jyashia RR. [John VV.], 92 AD3d at 983). The agency's duty to makediligent efforts is not obviated by a parent's incarceration (see generally Social ServicesLaw § 384-b [7] [f]). However, recognizing that incarceration creates some impediments,both to the agency and to the parent, we have held that an agency may fulfill its duty to makediligent efforts to encourage and strengthen the parental relationship of an incarcerated parent by,for example, apprising the incarcerated parent of the child's well-being, developing anappropriate service plan, investigating possible placement of the child with relatives suggested bythe parent, responding to the parent's inquiries and facilitating telephone contact between theparent and child (see Matter of MarquiseJJ. [Jamie KK.], 91 AD3d 1137, 1138-1139 [2012], lv denied 19 NY3d 801[2012]; Matter of Hailey ZZ. [RickyZZ.], 85 AD3d 1265, 1266 [2011], affd 19 NY3d 422 [2012]; Matter ofTrestin T. [Shawn U.], 82 AD3d at 1536; Matter of Kaiden AA. [John BB.], 81 AD3d 1209, 1209-1210[2011]).
Respondent first argues that petitioner failed to prove that it made the requisite diligentefforts to reunite him with the children because it had no contact with respondent during hisperiods of incarceration. We disagree. Although petitioner concedes its lack of contact withrespondent while he was incarcerated, this is not a case where the incarceration persisted for theentire duration of the children's foster care placement (compare Matter of Shi'ann FF., 47 AD3d 1133 [2008]) and,significantly, respondent does not deny the efforts made by petitioner during the six months inwhich he was released from incarceration prior to the commencement of this proceeding.The evidence adduced at the fact-finding hearing established that, upon his release from prison inDecember 2009, respondent called John Berry—petitioner's caseworker who was assignedto the children since 2005—and they met the following day. During the ensuing sixmonths, Berry arranged for respondent to have regular visitation with the children—atvarious locations and under various circumstances—which eventually took place inrespondent's apartment. Because respondent's one-bedroom efficiency-style apartment was notsuitable for the children to stay overnight, he encouraged respondent to obtain employment and alarger apartment so that overnight visitation and, ultimately, permanency planning could occur.In addition, Berry was in contact with respondent's parole officer, discussed with respondent theterms and conditions of his parole and attempted to assist respondent in complying with suchconditions. Berry also recommended appropriate classes and educational programs and providedenrollment information therefor. Although respondent initially attempted to comply with Berry's[*2]recommendations, he was unable to follow through due to hisreincarceration in May 2010 for violating the conditions of his parole. On the record before us,we conclude that Family Court correctly determined that the foregoing—considered incombination with respondent's awareness of the children's placement in foster care with relativesduring his periods of incarceration, his ability to regularly communicate with the children and hisfailure to seek visitation while incarcerated—satisfied petitioner's statutory duty to makediligent efforts to facilitate respondent's relationship with the children (see Matter ofMarquise JJ. [Jamie KK.], 91 AD3d at 1139).
Nor do we find any error in Family Court's finding that respondent permanently neglected thechildren. In this regard, the agency was required to establish, by clear and convincing evidence,that respondent failed "substantially and continuously or repeatedly to maintain contact with orplan for the future of the child[ren], although physically and financially able to do so" for aperiod of at least one year or 15 out of the most recent 22 months following the date the childrenwere taken into petitioner's care (Social Services Law § 384-b [7] [a]; see Matter ofHailey ZZ. [Ricky ZZ.], 19 NY3d 422, 429 [2012];Matter of Marquise JJ. [Jamie KK.], 91 AD3d at 1138).[FN*]Planning for a child's future entails taking the steps necessary to provide "an adequate, stablehome and parental care for the child within a period of time which is reasonable under thefinancial circumstances available to the parent" (Social Services Law § 384-b [7] [c]). Theparent's plan must be "realistic and feasible" (Social Services Law § 384-b [7] [c]; seeMatter of Trestin T. [Shawn U.], 82 AD3d at 1536-1537). Although the court must considerthe "special circumstances" of an incarcerated parent (Social Services Law § 384-b [7][a]), long-term foster care is not considered to be a feasible plan (see Matter of Trestin T.[Shawn U.], 82 AD3d at 1537; Matter of Kaiden AA. [John BB.], 81 AD3d at1210-1211).
Here, respondent testified that, prior to the filing of the instant petition, his plan includedvisitation with the children. Berry testified that respondent's only plan while he remained inprison was for the children to return to their mother's care and thereafter, upon his release, to"become involved and . . . be a good father" and have the children returned to hiscare. Respondent had an opportunity to engage in services necessary to become a resource for thechildren and/or otherwise make a meaningful plan for their future care while he was releasedfrom incarceration, but he squandered that opportunity by violating the conditions of his paroleby using drugs and having contact with the children's mother. At the time of the fact-findinghearing, respondent was still incarcerated and unavailable to care for the children. Nor did hepropose any meaningful alternative. According deference to Family Court's credibilitydeterminations, we are of the view that petitioner met its burden of establishing that respondentpermanently neglected the children by failing to make a realistic and feasible plan for their future,as respondent had, essentially, no plan in place (see Matter of Marquise JJ. [Jamie KK.],91 AD3d at 1139-1140; Matter of Trestin T. [Shawn U.], 82 AD3d at 1537; Matter ofKaiden AA. [John BB.], 81 AD3d at 1210-1211).
We also reject respondent's contention that Family Court should have entered a [*3]suspended judgment in lieu of terminating his parental rights(see Family Ct Act § 631). The evidence adduced at the dispositional hearingdemonstrated that respondent had been released from prison for approximately two months, hadnot yet completed a substance abuse evaluation, as required by the conditions of his parole, andhad not yet obtained his own apartment. By this time, the children had been in foster care forover two years—of which respondent had been incarcerated for approximately 20months—were doing well in the foster home and the foster parents wished to adopt them.Under these circumstances and according deference to Family Court (see Matter of JamesX., 37 AD3d at 1007), we find that the determination that it was in the children's bestinterests to terminate respondent's parental rights is supported by a sound and substantial basis inthe record (see e.g. Matter of Marquise JJ. [Jamie KK.], 91 AD3d at 1140-1141;Matter of Trestin T. [Shawn U.], 82 AD3d at 1537).
Finally, in light of the Court of Appeals' recent decision in Matter of Hailey ZZ. (RickyZZ.) (19 NY3d 422 [2012], supra), it is now beyond question that Family Court doesnot have the authority to grant respondent's request for posttermination visitation (see also Matter of Alexa L. [Nilza L.],79 AD3d 1290, 1293 [2010]).
Mercure, J.P., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: Inasmuch as the recorddemonstrates respondent's ongoing contact with the children, the issue is whether he adequatelyplanned for their future.