Opinion
192 CAF 18–02040
03-20-2020
In the MATTER OF JANETTE G. Erie County Department of Social Services, Petitioner–Respondent; v. Julie G., Respondent–Appellant.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT–APPELLANT. REBECCA HOFFMAN, BUFFALO, FOR PETITIONER–RESPONDENT. JESSICA L. VESPER, BUFFALO, ATTORNEY FOR THE CHILD.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT–APPELLANT.
REBECCA HOFFMAN, BUFFALO, FOR PETITIONER–RESPONDENT.
JESSICA L. VESPER, BUFFALO, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., CENTRA, CURRAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Social Services Law § 384–b, respondent mother appeals from an order that, inter alia, terminated her parental rights with respect to the subject child on the ground of permanent neglect and transferred guardianship and custody of the child to petitioner. We affirm.
We reject the mother's contention that petitioner failed to establish that it had exercised diligent efforts to encourage and strengthen the parent-child relationship, as required by Social Services Law § 384–b(7)(a). "Diligent efforts include reasonable attempts at providing counseling, scheduling regular visitation with the child, providing services to the parent[ ] to overcome problems that prevent the discharge of the child into [his or her] care, and informing the parent[ ] of [the] child's progress" ( Matter of Jessica Lynn W., 244 A.D.2d 900, 900–901, 665 N.Y.S.2d 205 [4th Dept. 1997] ; see § 384–b[7][f] ). Petitioner is not required, however, to "guarantee that the parent succeed in overcoming his or her predicaments" ( Matter of Sheila G., 61 N.Y.2d 368, 385, 474 N.Y.S.2d 421, 462 N.E.2d 1139 [1984] ; see Matter of Jamie M., 63 N.Y.2d 388, 393, 482 N.Y.S.2d 461, 472 N.E.2d 311 [1984] ). Rather, the parent must "assume a measure of initiative and responsibility" ( Jamie M., 63 N.Y.2d at 393, 482 N.Y.S.2d 461, 472 N.E.2d 311 ). Here, petitioner established by clear and convincing evidence that it exercised diligent efforts to encourage and strengthen the mother's relationship with the child (see Matter of Nicholas B. [Eleanor J.], 83 A.D.3d 1596, 1597, 921 N.Y.S.2d 762 [4th Dept. 2011], lv. denied 17 N.Y.3d 705, 2011 WL 2566514 [2011] ; see generally § 384–b[3][g][i] ). The mother contends that, because of her possible mental health issues, petitioner was required to do more than merely provide her referrals for services and leave her to manage them on her own. However, petitioner's evidence established that it did more than just give her referrals. Among other things, petitioner regularly checked the mother's progress, repeatedly encouraged her to actively participate in the recommended services despite her unwillingness to do so and her refusal to accept the need for those services, and attempted to send the mother transportation stipends. Thus, petitioner provided what services it could under the circumstances presented here (see 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, 2018 WL 2728503 [2018] ; Matter of Holden W. [Kelly W.], 81 A.D.3d 1390, 1390, 917 N.Y.S.2d 589 [4th Dept. 2011], lv denied 16 N.Y.3d 712, 2011 WL 1675781 [2011] ).
Contrary to the further contention of the mother, we conclude that, despite petitioner's diligent efforts, the mother failed to plan for the child's future. " ‘[T]o plan for the future of the child’ shall mean to take such steps as may be necessary to provide an adequate, stable home and parental care for the child" ( Social Services Law § 384–b[7][c] ). "At a minimum, parents must ‘take steps to correct the conditions that led to the removal of the child from their home’ " ( Matter of Nathaniel T., 67 N.Y.2d 838, 840, 501 N.Y.S.2d 647, 492 N.E.2d 775 [1986] ; see Matter of Crystal Q., 173 A.D.2d 912, 913, 569 N.Y.S.2d 775 [3d Dept. 1991], lv denied 78 N.Y.2d 855, 573 N.Y.S.2d 645, 578 N.E.2d 443 [1991] ). Here, " ‘there is no evidence that [the mother] had a realistic plan to provide an adequate and stable home for the child[ ]’ " ( Matter of Giohna R. [John R.], 179 A.D.3d 1508, 1509, 119 N.Y.S.3d 336 [4th Dept. 2020] ; see Matter of Micah Zyair F.W. [Tiffany L.], 110 A.D.3d 579, 579, 973 N.Y.S.2d 600 [1st Dept. 2013] ).
Finally, the record supports Family Court's decision to terminate the mother's parental rights rather than to grant a suspended judgment " ‘inasmuch as any progress made by the [mother] prior to the dispositional determination was insufficient to warrant any further prolongation of the [child's] unsettled familial status’ " ( Matter of Cyle F. [Alexander F.], 155 A.D.3d 1626, 1627–1628, 64 N.Y.S.3d 842 [4th Dept. 2017], lv denied 20 N.Y.3d 911 [2018] ; see Matter of Kendalle K. [Corin K.], 144 A.D.3d 1670, 1672, 41 N.Y.S.3d 832 [4th Dept. 2016] ).