| Matter of Johanna M. (John L.) |
| 2013 NY Slip Op 00968 [103 AD3d 949] |
| February 14, 2013 |
| Appellate Division, Third Department |
| In the Matter of Johanna M., a Child Alleged to BePermanently Neglected. Tompkins County Department of Social Services, Respondent;John L., Appellant. (Proceeding No. 1.) In the Matter of Tyler L., a Child Alleged to BePermanently Neglected. Tompkins County Department of Social Services, Respondent;John L., Appellant. (Proceeding No. 2.) |
—[*1] Joseph Cassidy, Tompkins County Department of Social Services, Ithaca, for [*2]respondent. Andrea J. Mooney, Ithaca, attorney for the children.
Peters, P.J. Appeal from an order of the Family Court of Tompkins County (Rowley,J.), entered January 19, 2012, which granted petitioner's applications, in two proceedingspursuant to Social Services Law § 384-b, to adjudicate the subject children to bepermanently neglected, and terminated respondent's parental rights.
Respondent is the father of Johanna M. (born in 2007) and Tyler L. (born in 2009).Johanna was removed from her mother's care when she was 13 months old and Tyler wasremoved following his birth. Both children were placed in foster care with their paternalgrandmother and, upon her death, with their paternal aunt. Respondent, who is currentlyincarcerated, has been in and out of prison consistently since 2002 and throughout nearlythe entirety of the children's young lives.
Following respondent's most recent conviction in July 2010, petitioner commencedthese proceedings seeking to terminate his parental rights based upon permanent neglect.Following a fact-finding hearing, Family Court found that respondent did not adequatelyplan for the future of the children and adjudicated the children to be permanentlyneglected. After a dispositional hearing, the court terminated respondent's parental rightsand freed the children for adoption. Respondent appeals.
Petitioner proved by clear and convincing evidence that it made diligent efforts toencourage and strengthen the parental relationship between respondent and his children(see Social Services Law § 384-b [7] [a], [f]; Matter of James J. [James K.],97 AD3d 936, 937 [2012]; Matter of Kaiden AA. [John BB.], 81 AD3d 1209, 1209[2011]). An appropriate service plan for respondent was developed by petitioner, bothwhile respondent was incarcerated and during the brief periods when he was living in thecommunity, and family team meetings were held to discuss and review that plan.Petitioner also provided referrals for a mental health evaluation as well as other servicesaimed at addressing the problems that led to the children's removal, including substanceabuse and domestic violence counseling. Petitioner's caseworkers sent respondentpermanency reports, continuously apprised him of the progress and health of the childrenand facilitated regular visitation with the children at the prison, including providingassistance with the cost of transportation. Such proof is more than sufficient to dischargepetitioner's obligation to exercise diligent efforts (see Matter of Summer G. [Amy F.], 93 AD3d 959, 961-962[2012]; Matter of Angelina BB.[Miguel BB.], 90 AD3d 1196, 1197 [2011]; Matter of Crystal JJ. [Sarah KK.], 85 AD3d 1262, 1263[2011], lv denied 17 NY3d 711 [2011]).[*3]
Although respondent maintained regular contactwith the children through visits, phone calls and letters, he was also obligated, despite hisincarceration, to develop a realistic plan for the children's future (see SocialServices Law § 384-b [7] [a]; Matter of Trestin T. [Shawn U.], 82 AD3d 1535,1536-1537 [2011], lv denied 17 NY3d 704 [2011]; Matter of Antonio EE. v SchoharieCounty Dept. of Social Servs., 38 AD3d 944, 945 [2007], lv denied 8NY3d 813 [2007]; Matter ofElijah NN., 20 AD3d 728, 729 [2005]). During the relevant time period,respondent failed to adequately address and remedy the problems that led to thechildren's removal. He has a long history of substance abuse and, despite havingcompleted several substance abuse treatment programs, he again relapsed into drug useand tested positive for marihuana, opiates and amphetamines during his brief releasefrom prison prior to his most recent incarceration. Moreover, respondent's stated planwas for the children to reside with his sister while he remained in prison and until suchtime as he is able to get into a "structured environment," maintain sobriety and cease hiscriminal behavior. Yet respondent was unable to articulate any specific plans forregaining and maintaining custody of the children, such as a plan for obtainingemployment or securing suitable housing for the children. Notably, respondent had anopportunity to engage in services necessary to become a resource for the children and tomake a meaningful plan for their future while he was released from prison in 2009, buthe squandered that opportunity by again engaging in criminal activity that resulted in hiscurrent incarceration. Thus, respondent's "plan" necessarily relegates the children tofoster care for the remainder of his prison term and for an undetermined period of timethereafter while he attempts to rehabilitate himself. We cannot agree with respondent'sassertion that this is a viable plan simply because the children will remain in the care of akinship foster parent. While there is no dispute that respondent's sister is an acceptableresource, the children are entitled to permanency (see Matter of Gregory B., 74NY2d 77, 90 [1989]; Matter of Abdul W., 224 AD2d 875, 876 [1996]; see also Matter of Shawn O.,19 AD3d 238, 239 [2005]). Accordingly, we find no basis to disturb Family Count'sconclusion that respondent permanently neglected his children by failing to adequatelyand realistically plan for their future (see Matter of James J. [James K.], 97 AD3dat 938-939; Matter of Trestin T. [Shawn U.], 82 AD3d at 1537; Matter ofKaiden AA. [John BB.], 81 AD3d at 1210-1211).
Finally, respondent contends that his parental rights should not have been terminated."Following an adjudication of permanent neglect, the sole concern at a dispositionalhearing is the best interests of the child and there is no presumption that any particulardisposition, including the return of a child to a parent, promotes such interests" (Matter of Angelica VV., 53AD3d 732, 733 [2008] [citations omitted]; see Family Ct Act § 631;Matter of Kellcie NN. [SarahNN.], 85 AD3d 1251, 1252 [2011]). To be sure, the children have a relationshipwith respondent, but he has never parented them. As we have noted, respondent has beenincarcerated for the overwhelming majority of the children's lives and, even when he wasnot incarcerated, he did not reside with or have custody of them. The children, who havebeen in foster care nearly all of their lives, have been thriving in the care of their paternalgrandmother and, subsequently, their paternal aunt, who intends to adopt them. Given allof the circumstances, we are of the view that Family Court properly found thattermination of respondent's parental rights was in the children's best interests (seeMatter of Summer G. [Amy F.], 93 AD3d at 962; Matter of Willard [*4]L., 23 AD3d 964, 966 [2005], lv denied 6NY3d 708 [2006]; Matter of Shawn O., 19 AD3d at 239).
Stein, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.