State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 2, 2015 518628
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In the Matter of JAYDEN XX.,
Alleged to be a Permanently
Neglected Child.
CORTLAND COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Respondent;
JOHN XX.,
Appellant.
(Proceeding No. 1.)
______________________________ MEMORANDUM AND ORDER
In the Matter of JUSTICE XX.,
Alleged to be a Permanently
Neglected Child.
CORTLAND COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Respondent;
JOHN XX.,
Appellant.
(Proceeding No. 2.)
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Calendar Date: February 19, 2015
Before: Peters, P.J., McCarthy, Rose and Clark, JJ.
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Abbie Goldbas, Utica, for appellant.
Kathleen A. Sullivan, Cortland County Department of Social
Services, Cortland, for respondent.
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Donna C. Chin, Ithaca, attorney for the children.
__________
Clark, J.
Appeal from an order of the Family Court of Cortland County
(Campbell, J.), entered March 7, 2014, which granted petitioner's
applications, in two proceedings pursuant to Social Services Law
§ 384-b, to adjudicate the subject children to be permanently
neglected, and terminated respondent's parental rights.
Respondent is the father of the two children (born in 2011
and 2012) who are the subject of these proceedings. Just prior
to the younger child's birth, a neglect petition was filed
against respondent, citing domestic violence and drug use. On
the day of the younger child's birth, the child tested positive
for cannabis and opiates and both children were placed in
petitioner's care and custody. Respondent, who was incarcerated
at the time, later stipulated to a finding of neglect of both
children and consented to an order continuing custody of the
children with petitioner and requiring him to, among other
things, participate in any programs offered in prison related to
addiction treatment, domestic violence, job skills and parenting.
In July 2013, petitioner commenced these permanent neglect
proceedings. Following a fact-finding hearing, Family Court
adjudicated the children to be permanently neglected and,
following a dispositional hearing, terminated respondent's
parental rights.1 Respondent now appeals.
Inasmuch as Family Court's determination that respondent
permanently neglected the children is supported by clear and
convincing evidence, we affirm (see Social Services Law § 384-b
[7] [a]). Contrary to respondent's contention, the record
demonstrates that petitioner made the requisite diligent efforts
to encourage and strengthen the parental relationship.
1
The children's mother voluntarily surrendered her
parental rights.
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Specifically, petitioner kept respondent – who has been
incarcerated for the vast majority of the children's lives –
informed as to the children's progress and well-being, arranged
regular visitation, provided him with photographs and inquired as
to his participation in court-ordered programs related to
substance abuse, domestic violence, job skills and parenting (see
Matter of Britiny U. [Tara S.], 124 AD3d 964, 966 [2015]; Matter
of Joannis P. [Joseph Q.], 110 AD3d 1188, 1190 [2013], lv denied
22 NY3d 857 [2013]; Matter of Johanna M. [John L.], 103 AD3d 949,
950 [2013], lv denied 21 NY3d 855 [2013]). Although respondent
argues that he should have been afforded visitation with the
children during his court appearances as well, there is no
indication in the record that he requested such visitation.
Thus, petitioner satisfied its obligation to provide diligent
efforts. Despite those efforts, respondent nonetheless failed to
develop a realistic plan for the children's future. He has
failed to complete the necessary programs, he has no plan for
obtaining employment or suitable housing upon his release from
prison and his suggested placement resource refused to care for
the children. Accordingly, we agree with Family Court's
conclusion that the children were permanently neglected (see
Matter of Johanna M. [John L.], 103 AD3d at 950-951; Matter of
Hailey ZZ. [Ricky ZZ.], 85 AD3d 1265, 1266 [2011]).
Family Court did not err in terminating respondent's
parental rights to free the children for adoption. Respondent
has been incarcerated throughout most of the children's lives and
was awaiting the imposition of yet another prison sentence at the
time of the dispositional hearing. Moreover, he has been
unwilling to complete the necessary programs to address his
substance abuse problems and has no viable plan for caring for
the children in the future. Although respondent argues that it
is unclear from the record whether the children's current foster
parents intend to adopt them, the lack of such an intention is
not determinative (see e.g. Matter of Raine QQ., 51 AD3d 1106,
1106 [2008], lv denied 10 NY3d 717 [2008]). Under these
circumstances, we conclude that Family Court properly found that
it was in the children's best interests to terminate respondent's
parental rights and free them for adoption (see Matter of Britiny
U. [Tara S.], 124 AD3d 964 at 967).
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Peters, P.J., McCarthy and Rose, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court