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In the Matter of Hailey Zz.

June 7, 2012


The opinion of the court was delivered by: Read, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

This appeal calls upon us to resolve a conflict within the Appellate Division as to whether Family Court may direct continuing contact between parent and child once parental rights have been terminated pursuant to Social Services Law § 384-b. We hold that the court lacks this authority.


Hailey ZZ., born in late 2007, initially resided with her birth mother and father and an older half-sister, a child of Hailey's mother and a different father. Father was sentenced to 5 to 15 years in prison in early 2008, when Hailey was three months old, and has apparently remained incarcerated ever since. On November 5, 2008, the Tompkins County Department of Social Services (DSS), effecting a removal under section 1024 of the Family Court Act, took Hailey and her half-sister away from their mother. The girls were placed in DSS's custody to reside with certified foster parents.

On March 26, 2010, DSS filed petitions against both parents, seeking orders adjudicating Hailey to be permanently neglected, terminating parental rights and committing her guardianship and custody to DSS (see Social Services Law § 384-b; Family Court Act § 614). On July 23, 2010, Hailey's mother surrendered her parental rights and signed a post-adoption visitation agreement (see Social Services Law § 383-c). DSS withdrew its petition against mother, and proceeded with the fact-finding hearing against father (Family Court Act § 622).

In a decision and order entered on August 12, 2010, Supreme Court*fn1 first determined that DSS had made the requisite diligent efforts to encourage and strengthen the parental relationship by maintaining regular contact with father after Hailey's placement in November 2008, insuring monthly visitations, requesting the necessary information to plan for the child's care and investigating the individuals whom father suggested to be Hailey's caretakers. He noted that DSS's diligent efforts "overcame as many barriers" posed by father's incarceration "as possible to assist [him] in reuniting with the child."

Next, Supreme Court determined that father had failed to plan for Hailey's future for more than one year after she came under DSS's care. The judge acknowledged that father had maintained contact with Hailey and DSS and had participated in various prison programs, but opined that this was insufficient. He observed that father was not likely to be released from prison until June 2011 at the earliest, and more likely later, possibly not until 2018; that once released, father would "have to obtain suitable housing and address some parenting issues prior to gaining placement of the child"; and that Hailey had already been in foster care for 20 months and "need[ed] to achieve permanency."

As a result of these circumstances, Supreme Court concluded that father's "only alternative [was] to come up with a plan for the care of [Hailey] until he [was] able to resume custody." The judge concluded that father failed to do this because the family members or others whom he proposed to care for Hailey were uniformly unsuitable: his father had a "lengthy history" with DSS, and one sister had such a "history" as well; father "admitted" that neither would be an "appropriate" custodian; the other sister was fired from her job as a health aide after being accused of elder abuse;*fn2 and his girlfriend of seven months and the distant relatives whom he identified barely knew Hailey, and "there [was] no indication whatsoever that they [were] interested or appropriate." Accordingly, Supreme Court adjudicated Hailey to be permanently neglected and ordered the requisite dispositional hearing (see Family Court Act §§ 623, 625).

In its decision and order entered on October 29, 2010 after the dispositional hearing, Supreme Court considered whether it was in Hailey's best interests to terminate father's parental rights and commit guardianship to DSS, or, alternatively, suspend judgment.*fn3 The judge remarked that father had been in prison "during the entire period" of Hailey's foster care -- 2/3 of her life -- and that once released, would still need to obtain stable housing and "possibly engage in other services[] before the child could be returned to his care." He concluded that it was in Hailey's best interests to terminate father's parental rights and free her for adoption so as to achieve permanency.

Additionally, Supreme Court denied father's request for continuing visitation with Hailey. Father cited several Fourth Department cases to support the availability of this option. The judge noted, though, that Third Department precedent did not allow for a court to mandate continuing contact between a parent and child after parental rights had been terminated pursuant to Social Services Law § 384-b. He added that such contact would, in any event, not be in Hailey's best interests as there was no evidence of any emotional or lasting connection between Hailey and father; indeed, they had spent only about 72 hours together in two years' time, or the equivalent of three out of 730 days. Nor was there evidence to show whether Hailey's potential adoptive parents "would be receptive to future visitation for [father]," or, if this adoption fell through, whether such a requirement "would discourage other potential adoptive parents." In sum, Supreme Court ruled it was in Hailey's best interests to terminate father's parental rights, without post-termination visitation "[e]ven if the Third Department allowed [it]," rather than suspend judgment. Father appealed.

The Appellate Division affirmed, concluding that the evidence supported Supreme Court's finding that DSS "made the requisite diligent efforts"; and there was "no basis to disturb [the judge's] conclusion that [father] failed to plan for the child's future" (85 AD3d 1265, 1266 [3d Dept 2011]). The Appellate Division also determined that the record supported Supreme Court's "finding that, instead of remaining in foster care on a long-term basis while [father] remains incarcerated, it is in the child's best interests to be freed for adoption by the foster parents, who have expressed a willingness to adopt [Hailey] and her half sister, to whom she is closely bonded" (id. at 1266-1267).*fn4 Further, "the request for post-termination visitation was properly denied as unavailable in a contested termination proceeding" (id. at 1267). We granted father leave to appeal (17 NY3d 709 [2011]), and now affirm.


An authorized agency that brings a proceeding to terminate parental rights based upon permanent neglect bears the burden of establishing that it has made "diligent efforts to encourage and strengthen the parental relationship" (Social Services Law § 384-b [7] [a]; see Matter of Sheila G., 61 NY2d 368, 380-381 [1984]). "Those efforts must include counseling, making suitable arrangements for visitation, providing assistance to the parents to resolve or ameliorate the problems preventing discharge of the child to their care and advising the parent at appropriate intervals of the child's progress and development" (Matter of Star Leslie W., 63 NY2d 136, 142 [1984]; see Social Services Law § 384-b [7] [f]).

Once diligent efforts have been established, the agency must prove that the parent has permanently neglected the child, as defined in Social Services Law § 384-b (7) (a), by "fail[ing] for a period of [more than one year] following the date such child came into the care of an authorized agency substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child."

Further, at the ensuing dispositional hearing the court must consider only the best interests of the child involved, which is essentially a factual determination (see Matter of Star Leslie W., 63 NY2d at 147-148).

Father argues that DSS did not prove by the required clear and convincing evidence that it exercised diligent efforts, or that he failed to plan for Hailey. Thus, he contends, Supreme Court should have dismissed the permanent neglect petition. But DSS established that it arranged visitation for father, communicated with him regarding service plans and Hailey's progress and investigated various relatives proposed as resources for placement. And as we emphasized in Matter of Gregory B. (74 NY2d 77, 89-90 [1989]), while the Legislature in Social Services Law § 384-b (7) "acknowledged the 'special circumstances' of an incarcerated parent . . . [t]his does not mean . . . that the Legislature intended to approve a plan of indefinite foster care for the child of an incarcerated parent who is serving a lengthy prison term and who cannot provide the child with an alternative living arrangement. Although the statutory scheme favors keeping a child with the natural parent where practicable and stresses the importance of exercising diligent efforts to foster and maintain the cohesiveness of a family unit, permanence in a child's life also has been given a priority, because the Legislature has determined that a normal family life in a permanent home offers the best opportunity for a child to develop and thrive. Thus, . . . a primary purpose of the statute is to provide a fair and timely basis to free a child for adoption and that [when] it is clear that natural parents cannot offer a normal home for a child, and continued foster care is not an appropriate plan, the statute directs that a permanent home be sought" ([internal quotation marks and citation omitted] [emphasis added]; see also Matter of Michael B., 80 NY2d 299, 310 [1992] ["Extended foster care is not in the child's best interest, because it deprives a child of a permanent, nurturing family relationship"]). We may review findings of fact, reached by the trial court under the proper evidentiary standard and affirmed by the Appellate Division, only to determine whether they enjoy support in the record (Matter of Star Leslie W., 63 NY2d at 147). Here, the evidence backs up Supreme Court's affirmed findings that DSS exercised diligent efforts, and that for a period of more than a year father failed to plan for Hailey's future in a "realistic and feasible" way (see Social Services Law § 384-b [7] [c]). As amicus curiae Monroe County Attorney put it, "[e]ffectively, [father's] plan for [Hailey] was to let the county care for her in foster care until he got out of prison . . ., at which time he would start the hard work to get the child back" (see Matter of Gregory B., 74 NY2d at 89 [statutory reforms precluding termination of parental rights based solely on the fact of incarceration "were in no way intended to excuse incarcerated parents from the requirement that they plan for their child's future"]). In short, the record supports the judge's determinations adjudicating Hailey a permanently neglected child and terminating father's parental rights, thus freeing Hailey for adoption.


In the event we decide that his parental rights were properly terminated -- as we have -- father contends that the lower courts wrongly decided that the hearing court lacked authority to grant him post-termination contact with Hailey. He therefore asks us to remit this matter to the Appellate Division for its review of Supreme Court's alternative ruling that post-termination visitation would not be in Hailey's best interests.

The Fourth Department has held that Family Court is authorized to award post-termination contact where parental rights have been terminated pursuant to Social Services Law § 384-b. In Matter of Kahlil S. (35 AD3d 1164 [4th Dept 2006], lv dismissed 8 NY3d 977 [2007]), the court upheld termination of the mother's parental rights with respect to her two children, Kahlil S. and Terrell Z., on the ground that she presently and for the foreseeable future was unable, by reason of mental illness, to provide proper and adequate care for them. In this connection, however, the Fourth Department declared that where

"parental rights are terminated after a finding that the parent is unable by reason of mental illness or mental retardation to provide proper and adequate care for his or her child or after a finding of permanent neglect (see Social Services Law § 384-b [4] [c], [d]), Family Court may, in those cases in which the court deems it appropriate, exercise its discretion in determining whether some form of post-termination contact with the biological parent is in the best interests of the child" (id. at 1165).

In so holding, the court expressly disavowed its contrary decisions in Matter of Kenneth D. (32 AD3d 1237 [4th Dept 2006]) and Matter of Livingston County Dept. of Social Servs. v Tracy T. (16 AD3d 1133 [4th Dept 2005]).*fn5

Thus, the Fourth Department in Matter of Kahlil S. remitted the matter to Family Court for a hearing as to whether post-termination contact with their mother was in the children's best interests (35 AD3d at 1165-1166). The court observed that in making this determination, Family Court was to "consider, inter alia, the ages of the children, the bond between [the mother] and the children, and the likelihood that the children will be adopted" (id. at 1166).*fn6 Section 634 of the Family Court Act is the only statute cited by the Fourth Department to support its decision. This provision states merely that an order entered after a ...

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