In re Ellen F.

Dillon, P. J. (dissenting).

I respectfully dissent. It is my view of the record that Family Court accepted petitioner’s proof as true and found that petitioner failed as a matter of law to demonstrate that it had made diligent efforts to encourage and strengthen the parental relationship as required by Social Services Law § 384-b (7).

Every order entered in this proceeding, including those extending custody, has been executed by the same Family Court Judge. Before testimony was taken at the hearing, there was an extended colloquy among the court, counsel, the Law Guardian and a caseworker. It is clear from that colloquy that the caseworker was intent upon having the child placed for adoption and had taken steps to effectuate that result. Indeed, *171the record demonstrates that counsel for the Department attempted to separate the Department from that purpose by repeatedly disavowing shared intent with the caseworker. It was in that setting that testimony began.

The testimony offered by the petitioner amply supports the court’s determination that the caseworker had improperly "planned for adoption of this child with the foster parents * * * prior to and without permanent termination of the parties’ rights”. The court condemned the "attempts” of the Department’s agents "to go forward with an adoption with the foster parents as the proposed adoptive parents”, and concluded that those efforts were inconsistent and incompatible with the Department’s duty under the statute to encourage and strengthen the parental relationship (see, Social Services Law § 384-b [7]; Matter of Leon RR, 48 NY2d 117, 126).

Beyond that, the court justifiably derided the "plan” which the Department had established purportedly to strengthen the parental relationship. The court noted that the father had completed several aspects of the "plan” but that the caseworkers had failed to keep abreast of the father’s progress. The court also concluded that the Department had failed to "accord * * * adequate visitation with the child” and had failed to notify either the father or the court that the child had been placed by the Department "in a foster home * * * where sexual abuse [of another child] occurred”. The court also took note of the testimony of a caseworker that the father had made sufficient but slow progress through his counseling; that based thereon placement was thereafter successively extended; and that less than a month prior to the filing of the petition for permanent neglect, the father was "instructed to attend additional counseling”. It is noteworthy also that one caseworker testified that she had "not ruled out the possibility” of the child being returned to her father.

On this record, I agree with the court’s determination that petitioner failed to make out a prima facie case of permanent neglect. I also agree with the conclusion, implicit in Family Court’s findings and decision, that with less concentration upon a future adoption and greater effort toward restoring a family relationship between father and daughter, there is a strong possibility that this child will be returned to the custody of her father. While I share the majority’s lament that this child "remains in the limbo of foster care”, that unfortunate circumstance results not from any error or impropriety on the part of Family Court, but rather from the lack *172of diligence and planning by the Department of Social Services.

Accordingly, I would affirm Family Court’s order.

Boomer, Green and Balio, JJ., concur with Pine, J.; Dillon, P. J., dissents in an opinion.

Order reversed, on the law, without costs, and matter remitted to Erie County Family Court for a new hearing, in accordance with the opinion of Pine, J.