State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 12, 2017 520964
520982
________________________________
In the Matter of BAYLEY W.
and Another, Alleged to be
Permanently Neglected
Children.
DELAWARE COUNTY DEPARTMENT OF
SOCIAL SERVICES, MEMORANDUM AND ORDER
Respondent;
PATRICK K.,
Appellant.
________________________________
Calendar Date: November 22, 2016
Before: Garry, J.P., Egan Jr., Rose, Clark and Mulvey, JJ.
__________
Teresa C. Mulliken, Harpersfield, for appellant.
D. Jeremy Rase, Delaware County Department of Social
Services, Delhi, for respondent.
Larisa Obolensky, Delhi, attorney for the children.
__________
Garry, J.P.
Appeals from two orders of the Family Court of Delaware
County (Becker, J.), entered January 2, 2015 and April 9, 2015,
which, in a proceeding pursuant to Social Services Law § 384-b,
granted petitioner's motion to revoke a suspended judgment, and
terminated respondent's parental rights.
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Respondent is the biological father of two children (born
in 2007 and 2008), who have been in petitioner's care, residing
with the same foster family since July 2009. Respondent was
incarcerated in 2010 on several drug-related convictions with an
initial parole hearing date in 2022, a conditional release date
in 2025, and a maximum expiration date in 2028.1 In June 2011,
he entered into a stipulation by which he made admissions of
permanent neglect and consented to the entry of orders of fact-
finding and disposition with a one-year suspended judgment.
Respondent's admissions included his acknowledgment that the
children's mother was not an appropriate resource for the care of
the children at that time and that he had not provided petitioner
with the names of any other appropriate resource. He further
acknowledged that his failure to identify an appropriate resource
who was ready, willing and able to care for the children could
constitute a violation of the terms and conditions of the
suspended judgment if the mother did not become able to act as
such a resource.
In April 2012, the children's mother voluntarily
surrendered her rights to the children. Approximately 10 days
later, petitioner moved to revoke the suspended judgment based
upon respondent's failure to identify a resource for the
children's care other than the mother. Family Court granted the
motion, revoked the suspended judgment and terminated
respondent's parental rights. Upon respondent's appeal, this
Court reversed the order and remitted the matter for an
evidentiary hearing on certain issues related to respondent's
compliance with the stipulation (116 AD3d 1109 [2014]).
Following the hearing, Family Court found that respondent had
failed to timely provide petitioner with the names of appropriate
resources, that this failure constituted a failure to plan for
the children's future, and that the children were permanently
neglected. After a dispositional hearing, the court issued a
1
Respondent testified that he hoped to be admitted into a
clemency program that could make him eligible for parole in 2017.
However, he did not know whether he was eligible for the program
or when this determination would be made.
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second order that terminated respondent's parental rights and
freed the children for adoption. Respondent appeals from both
orders.
We reject respondent's challenge to Family Court's findings
related to his compliance with the stipulation. When this matter
was previously before this Court, we found factual issues as to
whether respondent had provided petitioner with the names of
appropriate resources for the children's care, "when he did so
and whether he did so in a timely manner" (id. at 1110). At the
subsequent evidentiary hearing, petitioner's caseworker testified
that, between the entry of the suspended judgment in June 2011
and petitioner's motion to revoke it in April 2012, respondent
regularly participated by telephone in permanency planning
meetings and received copies of reports and plans that notified
him of increasing problems rendering the mother unable to act as
a resource for the children's care. Nevertheless, respondent
failed to identify any resource other than the mother until late
April or early May 2012, after petitioner had filed its
application to revoke the suspended judgment. At that point,
respondent provided the caseworker with the names of two friends
who had visited and babysat for the children before they were
placed in petitioner's care. The caseworker testified that
petitioner thereafter determined that these individuals were not
appropriate resources because they were not biologically related
to the children, had not formed meaningful relationships with
them before they entered petitioner's care, and had never visited
or contacted them thereafter. The caseworker further testified
that, contrary to respondent's claim, he had never mentioned his
mother (hereinafter the grandmother) as a potential resource.
However, she stated that a previous caseworker had contacted the
grandmother and had ascertained that she was not willing to act
as a resource because of her age.
Respondent gave a contradictory account, testifying that he
had verbally provided the names of the two individuals and the
grandmother to the caseworker as potential resources when the
caseworker visited him in prison in February or March 2012 – that
is, before the mother surrendered her parental rights and
petitioner moved to revoke the suspended judgment. However, our
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review of the record evidence reveals no support for respondent's
claim. The permanency reports and family service assessments
that cover the pertinent time period – including a February 2012
report that describes the caseworker's prison meeting with
respondent — consistently state that respondent did not identify
any resource other than the mother before petitioner moved to
revoke the suspended judgment. Further, the record includes no
indication that respondent or his counsel, both of whom received
copies of the reports, ever objected to these entries or sought
to have them corrected.
Respondent argues that the caseworker's file, which she did
not bring to the hearing, may contain notes supporting his
version of events, and that his motion for an adjournment to
obtain the file should therefore have been granted. However, as
Family Court found, respondent and his counsel had ample
opportunity to obtain the file through discovery before the
hearing and did not do so; further, we find that the caseworker's
testimony as to the relevant times and dates, based upon her
memory, was reasonably specific and certain. Accordingly, the
court did not abuse its discretion in refusing to incur further
delay by adjourning the hearing.
This Court defers to Family Court's credibility assessments
(see e.g. Matter of Hazel OO. [Roseanne OO.], 133 AD3d 1126, 1128
[2015]), and we find no reason to disturb Family Court's
resolution of the conflicting testimony as to when respondent
provided petitioner with the resources' names. Further, even if
the court had credited respondent's testimony as to the timing,
the stipulation required him to identify a resource who was
appropriate in petitioner's judgment to care for the children.
Nothing in respondent's testimony contradicted petitioner's
assessment that the grandmother was not appropriate because of
her age, and that respondent's friends lacked any meaningful
relationship with the children and were therefore inappropriate
to act as resources given that the children were strongly bonded
with the foster family. Respondent made no showing that these
conclusions were in error, nor did he show that anything
prevented him from providing the names of his resources at an
earlier time, i.e., before the children became so closely bonded
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with the foster family. Accordingly, we find that the court's
determination that respondent failed to comply with the terms of
the suspended judgment by timely supplying the names of
appropriate resources is supported by a sound and substantial
basis in the record (see Matter of Marquise JJ. [Brithany JJ.],
103 AD3d 937, 938 [2013], lv denied 21 NY3d 859 [2013]).2
In challenging the dispositional order, respondent claims
that petitioner failed to make the requisite diligent efforts to
facilitate his relationship with the children, in that petitioner
did not arrange prison visits during his incarceration and then
unfairly relied upon the children's resulting unfamiliarity with
him as a basis for terminating his parental rights. This
argument is not properly before this Court, as respondent
consented to the entry of the suspended judgment and failed
thereafter to move to vacate his stipulated admissions of
permanent neglect (see Matter of Jason H. [Lisa K.], 118 AD3d
1066, 1067 [2014]; Matter of Abbigail EE. [Elizabeth EE.], 106
AD3d 1205, 1206-1207 [2013]; Matter of Aidan D., 58 AD3d 906, 908
[2009]). We would have found no merit in the claim even if it
had been preserved, as petitioner is not required to facilitate
visitation with an incarcerated parent when it is not in the
children's best interests because of such factors as distance or
the children's youth (see Social Services Law § 384-b [7] [f]
[5]; Matter of Marquise JJ. [Jamie KK.], 91 AD3d 1137, 1139
[2012], lv denied 19 NY3d 801 [2012]). On the facts presented
here, had the issue been properly presented, we would have found
no failure on petitioner's part.
The sole concern at a dispositional hearing following a
finding of permanent neglect is the best interests of the child
(see Matter of Star Leslie W., 63 NY2d 136, 147-148 [1984]).
Although respondent sought to maintain contact with the children
2
Respondent's claim that the requirement that he identify
an "appropriate" resource violated his due process rights is not
subject to appellate review, as the suspended judgment was
entered upon his consent (see Matter of Jonathan NN. [Michelle
OO.], 90 AD3d 1161, 1164 [2011], lv denied 18 NY3d 808 [2012]).
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by such measures as sending them regular correspondence and
participating by telephone in permanency hearings, his
incarceration will prevent him from caring for them for many
years. The record reveals that they have spent most of their
lives living without permanence in petitioner's custody, that
they are thriving in the care of the foster parents with whom
they have continuously resided since 2009, that they are closely
bonded with the foster family, and that the foster parents wish
to adopt them. Family Court's determination to terminate
respondent's parental rights and free the children for adoption
was in their best interests (see Matter of Marquise JJ. [Jamie
KK.], 91 AD3d at 1140-1141; Matter of Hailey ZZ. [Ricky ZZ.], 85
AD3d 1265, 1266-1267 [2011], affd 19 NY3d 422 [2012]; Matter of
Trestin T. [Shawn U.], 82 AD3d 1535, 1537 [2011], lv denied 17
NY3d 704 [2011]).
Egan Jr., Rose, Clark and Mulvey, JJ., concur.
ORDERED that the orders are affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court