Opinion
CAF 17–02037 1475
03-22-2019
In the Matter of Jaxon S. Commissioner of the Ontario County Department of Social Services, Petitioner–Respondent; v. Jason S., Respondent–Appellant.
CARA A. WALDMAN, FAIRPORT, FOR RESPONDENT–APPELLANT. HOLLY A. ADAMS, COUNTY ATTORNEY, CANANDAIGUA (WENDY R. WELCH OF COUNSEL), FOR PETITIONER–RESPONDENT. TERESA M. PARE, CANANDAIGUA, ATTORNEY FOR THE CHILD.
CARA A. WALDMAN, FAIRPORT, FOR RESPONDENT–APPELLANT.
HOLLY A. ADAMS, COUNTY ATTORNEY, CANANDAIGUA (WENDY R. WELCH OF COUNSEL), FOR PETITIONER–RESPONDENT.
TERESA M. PARE, CANANDAIGUA, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that said appeal from the order insofar as it concerns the disposition is unanimously dismissed and the order is affirmed without costs.
Memorandum: In this proceeding 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 child on the ground of permanent neglect and freed the child for adoption. Initially, we note that the father's appeal from the order insofar as it concerns the disposition has been rendered moot by the subsequent adoption of the child (see Matter of Iyanna KK. [Edward KK.], 141 A.D.3d 885, 886, 34 N.Y.S.3d 910 [3d Dept. 2016] ; Matter of Alexis C. [Jacqueline A.], 99 A.D.3d 542, 542–543, 952 N.Y.S.2d 175 [1st Dept. 2012], lv denied 20 N.Y.3d 856, 959 N.Y.S.2d 691, 983 N.E.2d 770 [2013] ), and the exception to the mootness doctrine does not apply (see Matter of Karlee JJ. [Jessica JJ.], 105 A.D.3d 1304, 1305, 964 N.Y.S.2d 686 [3d Dept. 2013] ). Nonetheless, the father's appeal brings up for review the propriety of the order of fact-finding determining that he permanently neglected the child (see Matter of Christopher D.S. [Richard E.S.], 136 A.D.3d 1285, 1286 [4th Dept. 2016] ; Matter of Lisa E. [Appeal No. 1], 207 A.D.2d 983, 983, 617 N.Y.S.2d 657 [4th Dept. 1994] ).
Contrary to the father's contention, we conclude that petitioner established by clear and convincing evidence that it made diligent efforts to encourage and strengthen the relationship between the father and the child (see Social Services Law § 384–b [7 ][a]; Matter of Soraya S. [Kathryne T.], 158 A.D.3d 1305, 1305–1306, 70 N.Y.S.3d 737 [4th Dept. 2018], lv denied 31 N.Y.3d 908, 79 N.Y.S.3d 98, 103 N.E.3d 1245 [2018] ). The evidence adduced at the fact-finding hearing established that petitioner's caseworker, inter alia, asked the father for names of relatives who might be a custodial resource for the child, ascertained the father's whereabouts when the father failed to maintain contact with the caseworker, informed the father of his right to visitation with the child while incarcerated, provided the father with informational updates and photographs of the child, and provided the father with reports prepared in conjunction with the permanency hearings ordered by Family Court (see Matter of Caidence M. [Francis W.M.], 162 A.D.3d 1539, 1539–1540, 78 N.Y.S.3d 558 [4th Dept. 2018], lv denied 32 N.Y.3d 905, 89 N.Y.S.3d 112, 113 N.E.3d 946 [2018] ; Matter of Kaiden AA. [John BB.], 81 A.D.3d 1209, 1210, 917 N.Y.S.2d 394 [3d Dept. 2011] ). We further conclude that, despite those diligent efforts, the father failed to plan for the future of the child (see Soraya S., 158 A.D.3d at 1306, 70 N.Y.S.3d 737 ). The father's plan, i.e., for the child to remain in foster care until the father was released from prison at some indefinite future time, was inadequate, particularly in light of the father's failure to engage in drug treatment and parenting classes while incarcerated (see Matter of Hailey ZZ. [Ricky ZZ.], 19 N.Y.3d 422, 430–431, 948 N.Y.S.2d 846, 972 N.E.2d 87 [2012] ; Matter of Alex C., Jr. [Alex C., Sr.], 114 A.D.3d 1149, 1150, 980 N.Y.S.2d 187 [4th Dept. 2014], lv denied 23 NY3d 901, 987 N.Y.S.2d 1, 10 N.E.3d 189 [2014] ).