SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
80
CAF 15-01417
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
IN THE MATTER OF SKYE N., STARR N., BRITTANI N.,
AND MITCHELL N.
------------------------------------------------ MEMORANDUM AND ORDER
ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;
CARL N., SR., RESPONDENT-APPELLANT.
DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT.
KATE NOWADLY, BUFFALO, FOR PETITIONER-RESPONDENT.
DAVID C. SCHOPP, ATTORNEY FOR THE CHILDREN, THE LEGAL AID BUREAU OF
BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL).
Appeal from an order of the Family Court, Erie County (Sharon M.
LoVallo, J.), entered August 11, 2015 in a proceeding pursuant to
Family Court Act article 6 and Social Services Law § 384-b. The
order, among other things, transferred guardianship and custody of the
subject children to petitioner.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act
article 6 and Social Services Law § 384-b, respondent father appeals
from an order that, inter alia, terminated his parental rights with
respect to the subject children on the ground of permanent neglect and
transferred guardianship and custody of the children to petitioner.
Petitioner commenced the underlying proceeding alleging that the
father derivatively neglected the subject children when he repeatedly
sexually abused his then 14-year-old stepdaughter, who is not a
subject of this proceeding. The father subsequently pleaded guilty
to, inter alia, rape in the first degree and course of sexual conduct
against a child in the second degree relating to his conduct with his
stepdaughter.
Contrary to the father’s contention, petitioner demonstrated by
the requisite clear and convincing evidence that it made diligent
efforts to encourage and strengthen the parent-child relationship by
“developing an appropriate service plan tailored to the situation,
regularly updating the [father] on the children’s progress and
continually reminding [him] to comply with the requirements of the
service plan” (Matter of Deime Zechariah Luke M. [Sharon Tiffany M.],
-2- 80
CAF 15-01417
112 AD3d 535, 536, lv denied 22 NY3d 863; see Matter of Davianna L.
[David R.], 128 AD3d 1365, 1365, lv denied 25 NY3d 914; Matter of
Jaylysia S.-W., 28 AD3d 1228, 1228-1229). The father contends that he
planned for the children’s return by planning to participate in sex
offender treatment, but could not do so because such a program was not
offered at the facility where he was incarcerated. We reject that
contention, inasmuch as “petitioner was not required to provide
‘services and other assistance . . . so that problems preventing the
discharge of the child[ren] from care [could] be resolved or
ameliorated’ ” (Jaylysia S.-W., 28 AD3d at 1229, quoting Social
Services Law § 384-b [7] [f] [3]; see Matter of Amanda C., 281 AD2d
714, 716, lv denied 96 NY2d 714).
Contrary to the father’s further contention, petitioner
established that, despite its diligent efforts to reunite the father
with the children, the father failed to plan for the children’s future
“by neither acknowledging nor meaningfully addressing the conditions
that led to the children’s removal in the first instance, namely, the
underlying sexual abuse of another older daughter” (Matter of Iasha
Tameeka McL. [Herbert McL.], 135 AD3d 601, 601; see Matter of Emerald
L.C. [David C.], 101 AD3d 1679, 1680), and by failing to “provide any
‘realistic and feasible’ alternative to having the children remain in
foster care until [his] release from prison” (Matter of Gena S. [Karen
M.], 101 AD3d 1593, 1594, lv dismissed 21 NY3d 975; see Davianna L.,
128 AD3d at 1365).
Although the father requested a suspended judgment at the
dispositional hearing and thus preserved for our review his contention
that Family Court erred in failing to grant that relief, we reject
that contention inasmuch as the record of the dispositional hearing
establishes that “any progress that [the father] made ‘was not
sufficient to warrant any further prolongation of the child[ren’s]
unsettled familial status’ ” (Matter of Jose R., 32 AD3d 1284, 1285,
lv denied 7 NY3d 718; see Matter of Kyla E. [Stephanie F.], 126 AD3d
1385, 1386, lv denied 25 NY3d 910).
Finally, to the extent that the father contends that the court
improperly admitted in evidence records containing hearsay statements,
we conclude that any such error is harmless “ ‘because the result
reached herein would have been the same even had such [statements]
been excluded,’ ” and “ ‘[t]here is no indication that the court
considered, credited, or relied upon inadmissible hearsay in reaching
its determination’ ” (Kyla E., 126 AD3d at 1386).
Entered: March 24, 2017 Frances E. Cafarell
Clerk of the Court