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In re George R. (Anonymous)

Supreme Court of New York, Second Department

June 27, 2018

In the Matter of George R. (Anonymous). SCO Family of Services, respondent, et al., petitioner; Samatha M. (Anonymous), appellant.

          Geanine Towers, Brooklyn, NY, for appellant.

          Carrieri & Carrieri, P.C., Mineola, NY (Ralph R. Carrieri of counsel), for respondent.

          Seymour W. James, Jr., New York, NY (Dawne Mitchell and Riti P. Singh of counsel), attorney for the child.

          MARK C. DILLON, J.P., RUTH C. BALKIN, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.

          DECISION & ORDER

         In a proceeding pursuant to Social Services Law § 384-b, the mother appeals from an order of fact-finding and disposition of the Family Court, Kings County (Lillian Wan, J.), dated November 17, 2016. The order of fact-finding and disposition, insofar as appealed from, after fact-finding and dispositional hearings, found that the mother permanently neglected the subject child, terminated the mother's parental rights, and transferred guardianship and custody of the subject child to the petitioners for the purpose of adoption.

         ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.

         The subject child was born in August 2013, and was placed in foster care when he tested positive for benzodiazepine, methadone, and opiates. In January 2016, the SCO Family of Services (hereinafter the agency) and the Commissioner of Social Services of the City of New York (hereinafter together the petitioners) commenced this proceeding to terminate the parental rights of the mother and the putative father. After fact-finding and dispositional hearings, the Family Court issued an order of fact-finding and disposition determining, inter alia, that the mother permanently neglected the child, terminating her parental rights, and transferring guardianship and custody of the child to the petitioners for the purpose of adoption. The mother appeals.

         Generally, to establish that a mother permanently neglected her child, an agency has to establish, by clear and convincing evidence, that for a period of one year following the child's placement with the agency, the mother failed to maintain contact with the child or, alternatively, failed to 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 parent-child relationship (see Social Services Law § 384-b[4], [7][a]). The threshold inquiry in a proceeding to terminate parental rights generally is whether the agency demonstrated that it exerted diligent efforts to encourage and strengthen the parental relationship (see Social Services Law § 384-b[7][a]; Matter of Hailey ZZ. [Ricky ZZ.], 19 N.Y.3d 422, 429; Matter of Sheila G., 61 N.Y.2d 368, 373). However, here, because the mother failed to keep the agency apprised of her whereabouts for at least six months, the agency was not required to prove that it made diligent efforts (see Social Services Law § 384-b[7][e][i]; Matter of Jackie Ann W. [Leticia Ann W.], 154 A.D.3d 459, 461; Matter of Leavon Marvin B., 60 A.D.3d 941, 942; Matter of Brittany Noel G., 22 A.D.3d 754, 755). In any event, the agency established by clear and convincing evidence that it made diligent efforts to encourage and strengthen the mother's relationship with the child. These efforts included scheduling and supervising parental access, and providing the mother with referrals to drug treatment programs, parenting classes, and counseling (see Matter of Lierre J.M. [Melissa L.D.], 150 A.D.3d 1009, 1010; Matter of Hector V.P. [Mariana V.], 146 A.D.3d 889, 890; Matter of William Z. [Millie A.S.], 123 A.D.3d 937, 938).

         The agency demonstrated that the mother did not appear for scheduled parental access with the child for approximately one year. There is no basis to disturb the Family Court's finding that the mother's explanation for her failure to appear was not credible (see Matter of Breana R.S. [Triana B.-S.], 148 A.D.3d 1157, 1158; Matter of Derrick D.A. [Shavonna L.L.D.], 134 A.D.3d 928, 929). Accordingly, the mother's failure to maintain contact with the child was sufficient to support a finding of permanent neglect (see Matter of Karina J.M. [Carmen Enid G.], 145 A.D.3d 893, 895; Matter of Jayden Isaiah O. [Rossely R.-O.], 144 A.D.3d 465, 465; Matter of Jonathan Jose T., 44 A.D.3d 508, 509; Matter of Emily A., 216 A.D.2d 124, 124-125).

         The Family Court also properly determined that it was in the child's best interests to terminate the mother's parental rights, rather than to enter a suspended judgment, and to free the child for adoption (see Family Ct Act § 631; Matter of Nay'amya W.R. [Kiara D.],135 A.D.3d 770, 771; Matter of Aleeyah T.M. ...


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