IN THE MATTER OF SKYE N., STARR N., BRITTANI N., AND MITCHELL N. ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; CARL N., SR., RESPONDENT-APPELLANT.
J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT.
NOWADLY, BUFFALO, FOR PETITIONER-RESPONDENT.
C. SCHOPP, ATTORNEY FOR THE CHILDREN, THE LEGAL AID BUREAU OF
BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL).
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND
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
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
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.
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.], 112 A.D.3d 535, 536, lv denied 22 N.Y.3d
863; see Matter of Davianna L. [David R.], 128
A.D.3d 1365, 1365, lv denied 25 N.Y.3d 914;
Matter of Jaylysia S.-W., 28 A.D.3d 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 A.D.3d
at 1229, quoting Social Services Law § 384-b  [f]
; see Matter of Amanda C., 281 A.D.2d 714, 716,
lv denied 96 N.Y.2d 714).
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
A.D.3d 601, 601; see Matter of Emerald L.C. [David
C.], 101 A.D.3d 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
A.D.3d 1593, 1594, lv dismissed 21 N.Y.3d 975;
see Davianna L., 128 A.D.3d at 1365).
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
A.D.3d 1284, 1285, lv denied 7 N.Y.3d 718; see
Matter of Kyla E. [Stephanie F.], 126 A.D.3d 1385, 1386,
lv denied 25 N.Y.3d 910).
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 ...