Opinion
1322 CAF 16–01378
03-15-2019
In the MATTER OF DEON M. Erie County Department of Social Services, Petitioner–Respondent; v. Vernon B., Respondent–Appellant. In the Matter of David M.J.B. Erie County Department of Social Services, Petitioner–Respondent; v. Vernon B., Respondent–Appellant.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT–APPELLANT. ERIC R. ZIOBRO, BUFFALO, FOR PETITIONER–RESPONDENT. DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), ATTORNEY FOR THE CHILDREN.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT–APPELLANT.
ERIC R. ZIOBRO, BUFFALO, FOR PETITIONER–RESPONDENT.
DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), ATTORNEY FOR THE CHILDREN.
PRESENT: SMITH, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDERIt 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 an order that, inter alia, terminated his parental rights with respect to the subject children on the ground of permanent neglect. Contrary to the father's contention, we conclude that petitioner met its burden of establishing "by clear and convincing evidence that it made diligent efforts to encourage and strengthen the relationship between the [father] and [the children]" ( Matter of Jayveon S. [Timothy S.] , 158 A.D.3d 1283, 1283, 68 N.Y.S.3d 367 [4th Dept. 2018], lv. denied 31 N.Y.3d 908, 79 N.Y.S.3d 97, 103 N.E.3d 1244 [2018] [internal quotation marks omitted]; see Matter of Walter DD. [Walter TT.] , 152 A.D.3d 896, 897–898, 58 N.Y.S.3d 721 [3d Dept. 2017], lv denied 30 NY3d 905, 89 N.E.3d 1259 [2017] ; Matter of Kaiden AA. [John BB.] , 81 A.D.3d 1209, 1209–1210, 917 N.Y.S.2d 394 [3d Dept. 2011] ). Contrary to the father's further contention, petitioner also established that the father "failed substantially and continuously to plan for the future of the [children] although physically and financially able to do so" ( Matter of Makayla S. [David S.—Alecia P.] , 118 A.D.3d 1312, 1312, 987 N.Y.S.2d 757 [4th Dept. 2014], lv denied 24 N.Y.3d 904, 995 N.Y.S.2d 713, 20 N.E.3d 659 [2014] [internal quotation marks omitted]; see § 384–b [7 ][a] ). With respect to the younger child, although the father participated in some of the services offered by petitioner, petitioner established that the father "did not successfully address or gain insight into the problems that led to the removal of the child and continued to prevent the child's safe return" ( Matter of Giovanni K. , 62 A.D.3d 1242, 1243, 878 N.Y.S.2d 846 [4th Dept. 2009], lv denied 12 N.Y.3d 715, 884 N.Y.S.2d 691, 912 N.E.2d 1072 [2009] ). With respect to the older child, the father failed to "provide any realistic and feasible alternative to having the child[ ] remain in foster care until [the father's] release from prison" ( Matter of Skye N. [Carl N.] , 148 A.D.3d 1542, 1544, 49 N.Y.S.3d 211 [4th Dept. 2017] [internal quotation marks omitted]; see Kaiden AA. , 81 A.D.3d at 1210–1211, 917 N.Y.S.2d 394 ).
We reject the father's contention that petitioner failed to meet its burden of establishing by a preponderance of the evidence that termination of his parental rights, rather than a suspended judgment, is in the best interests of the children (see Matter of Burke H. [Richard H.] , 134 A.D.3d 1499, 1502, 23 N.Y.S.3d 776 [4th Dept. 2015] ; Matter of Justice A.A. [Tina M.G.] , 121 A.D.3d 886, 887–888, 994 N.Y.S.2d 187 [2d Dept. 2014] ; Matter of Yasiel P. [Lisuan P.] , 79 A.D.3d 1744, 1746, 915 N.Y.S.2d 426 [4th Dept. 2010], lv denied 16 N.Y.3d 710, 922 N.Y.S.2d 272, 947 N.E.2d 164 [2011] ). The record establishes that the father "failed to complete [his] service plan[ ] and made inadequate efforts to visit the subject children despite being able to do so" ( Burke H. , 134 A.D.3d at 1502, 23 N.Y.S.3d 776 ).