Opinion
231 CAF 18–01007
03-13-2020
In the MATTER OF BRAYLYNN S. Erie County Department of Social Services, Petitioner–Respondent; v. Eric S., Sr., Respondent–Appellant. (Appeal No. 1.)
WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT–APPELLANT. REBECCA HOFFMAN, BUFFALO, FOR PETITIONER–RESPONDENT. DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JANE I. YOON OF COUNSEL), ATTORNEY FOR THE CHILD.
WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT–APPELLANT.
REBECCA HOFFMAN, BUFFALO, FOR PETITIONER–RESPONDENT.
DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JANE I. YOON OF COUNSEL), ATTORNEY FOR THE CHILD.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In these proceedings pursuant to Social Services Law § 384–b, respondent father appeals from two orders that terminated his parental rights to the subject children on the ground of permanent neglect. Contrary to the father's contention in both appeal No. 1 and appeal No. 2, petitioner demonstrated by clear and convincing evidence that it made the requisite diligent efforts to encourage and strengthen the relationship between the father and the children (see § 384–b[7][a] ; Matter of Kyle K., 49 A.D.3d 1333, 1335, 854 N.Y.S.2d 270 [4th Dept. 2008], lv denied 10 N.Y.3d 715, 862 N.Y.S.2d 335, 892 N.E.2d 401 [2008] ) and that, despite those efforts, the father failed " ‘to correct the conditions that led to the placement of the children in the custody of petitioner’ " (Kyle K., 49 A.D.3d at 1335, 854 N.Y.S.2d 270 ). In the original neglect proceeding, the father admitted that he "failed to cooperate with intensive or preventative services," and in the instant proceedings petitioner established that the father continued to be uncooperative and argumentative with service providers and was unable to consistently apply the knowledge and benefits that he gained from those services that were provided (see Matter of Serenity G. [Orena G.], 101 A.D.3d 1639, 1640, 956 N.Y.S.2d 729 [4th Dept. 2012] ; Matter of Gerald G. [Orena G.], 91 A.D.3d 1320, 1321, 938 N.Y.S.2d 701 [4th Dept. 2012], lv denied 19 N.Y.3d 801, 2012 WL 1502759 [2012] ; see also Matter of Brady J.C. [Justin P.C.], 154 A.D.3d 1325, 1326, 62 N.Y.S.3d 248 [4th Dept. 2017], lv denied 30 N.Y.3d 909, 2018 WL 414290 [2018] ). The refusal to engage with services "demonstrates a failure to address or gain insight into the problems that led to the removal of the child[ren] and continued to prevent the child[ren's] safe return" ( Matter of D'Angel M.-B. [Donell M.-B.], 173 A.D.3d 1764, 1765, 105 N.Y.S.3d 632 [4th Dept. 2019] [internal quotation marks omitted] ). Contrary to the father's further contention in both appeals, Family Court did not abuse its discretion in refusing to enter a suspended judgment with respect to each child. The record of the dispositional hearing establishes that the father did not have " ‘a realistic, feasible plan to care for the children’ " ( Matter of Nicholas B. [Eleanor J.], 83 A.D.3d 1596, 1598, 921 N.Y.S.2d 762 [4th Dept. 2011], lv denied 17 N.Y.3d 705, 2011 WL 2566514 [2011] ) and that "any progress made by the father was not sufficient to warrant any further prolongation of the [children's] unsettled familial status" ( D'Angel M.-B., 173 A.D.3d at 1766, 105 N.Y.S.3d 632 [internal quotation marks omitted]; see Matter of Eden S. [Joshua S.], 170 A.D.3d 1580, 1583, 96 N.Y.S.3d 426 [4th Dept. 2019], lv denied 33 N.Y.3d 909, 2019 WL 2588184 [2019] ).