Opinion
625 CAF 16–01341
06-08-2018
In the MATTER OF CAIDENCE M., Bianca M., and Francis M. Seneca County Department of Human Services, Petitioner–Respondent; v. Francis W.M., Respondent–Appellant.
MARY M. WHITESIDE, NORTH HOLLYWOOD, CALIFORNIA (DAVID M. ABBATOY, JR., ROCHESTER OF COUNSEL), FOR RESPONDENT–APPELLANT. FRANK R. FISHER, COUNTY ATTORNEY, WATERLOO (DAVID K. ETTMAN, SENECA FALLS OF COUNSEL), FOR PETITIONER–RESPONDENT. SARA E. ROOK, ROCHESTER, ATTORNEY FOR THE CHILDREN.
MARY M. WHITESIDE, NORTH HOLLYWOOD, CALIFORNIA (DAVID M. ABBATOY, JR., ROCHESTER OF COUNSEL), FOR RESPONDENT–APPELLANT.
FRANK R. FISHER, COUNTY ATTORNEY, WATERLOO (DAVID K. ETTMAN, SENECA FALLS OF COUNSEL), FOR PETITIONER–RESPONDENT.
SARA E. ROOK, ROCHESTER, ATTORNEY FOR THE CHILDREN.
PRESENT: WHALEN, P.J., SMITH, CARNI, LINDLEY, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent father appeals from an order terminating his parental rights on the ground of permanent neglect and transferring guardianship and custody of his three children to petitioner. We reject the father's contention that petitioner failed to establish that it had exercised diligent efforts to encourage and strengthen the parent-child relationship during his incarceration 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 parents to overcome problems that prevent the discharge of the child into their care, and informing the parents of their 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]; Matter of Mya B. [William B.], 84 A.D.3d 1727, 1727, 922 N.Y.S.2d 713 [4th Dept. 2011], lv denied 17 N.Y.3d 707, 2011 WL 3925051 [2011] ).
Social Services Law § 384–b (7)(f)(3) provides that an agency need not provide "services and other assistance to ... incarcerated parents" (see Matter of Jaylysia S.–W., 28 A.D.3d 1228, 1229, 813 N.Y.S.2d 622 [4th Dept. 2006] ). While an agency's obligation to exercise diligent efforts is not obviated by a parent's incarceration (see § 384–b [7 ][f] ), it does "create[ ] some impediments, both to the agency and to the parent," leading courts to conclude that diligent efforts in such circumstances may be established by the agency "apprising the incarcerated parent of the child's well-being, developing an appropriate service plan, investigating possible placement of the child with relatives suggested by the parent, responding to the parent's inquiries and facilitating telephone contact between the parent and child" ( Matter of James J. [James K.], 97 A.D.3d 936, 937, 948 N.Y.S.2d 203 [3d Dept. 2012] ; see Matter of Hailey ZZ. [Ricky ZZ.], 19 NY3d 422, 430, 948 N.Y.S.2d 846, 972 N.E.2d 87 [2012] ).
Here, petitioner established by clear and convincing evidence that it fulfilled its duty in that regard (see Mya B., 84 A.D.3d at 1728, 922 N.Y.S.2d 713 ). During the nearly four-month period after petitioner removed the children from the father's home to the time the father was incarcerated, petitioner offered the father drug treatment and parent counseling services, transportation assistance, and information about available apartments when the father stated that he was going to be evicted from his apartment. The father refused drug treatment and parent counseling and tested positive for cocaine, and he was arrested for armed robbery and criminal possession of a controlled substance in the third degree, leading to his incarceration. While the father was incarcerated, petitioner arranged visits between the father and the children, made special arrangements to have the visits take place during the week, kept the father apprised of the children's well-being, and investigated the children's possible placement with relatives.
The evidence at the hearing established that the father failed to plan for the future of the children (see Matter of Christian C.–B. [Christopher V.B.], 148 A.D.3d 1775, 1776–1777, 50 N.Y.S.3d 766 [4th Dept. 2017], lv denied 29 N.Y.3d 917, 2017 WL 3877620 [2017] ). Although the father wanted the children to live with the paternal grandmother until he was released from prison, petitioner determined that the grandmother was not a viable candidate (see Matter of Amanda C., 281 A.D.2d 714, 716–717, 722 N.Y.S.2d 267 [3d Dept. 2001], lv denied 96 N.Y.2d 714, 729 N.Y.S.2d 441, 754 N.E.2d 201 [2001] ). Petitioner also investigated the paternal uncle, who lived out of state, but likewise determined that he was not a viable candidate. In any event, the uncle offered to take custody of only one child. Finally, the father's alternative suggestion, i.e., that the children remain in foster care until he was released from prison, was "not in the child[ren']s best interests and [was] antithetical to [their] need for permanency" ( Matter of Kaiden AA. [John BB.], 81 A.D.3d 1209, 1211, 917 N.Y.S.2d 394 [3d Dept. 2011] ; see Matter of Skye N. [Carl N.], 148 A.D.3d 1542, 1544, 49 N.Y.S.3d 211 [4th Dept. 2017] ; Matter of Gena S. [Karen M.], 101 A.D.3d 1593, 1594, 958 N.Y.S.2d 546 [4th Dept. 2012], lv dismissed 21 N.Y.3d 975, 970 N.Y.S.2d 744, 992 N.E.2d 1087 [2013] ).
The father further contends that the oldest child was denied effective assistance of counsel inasmuch as one attorney represented all three children and there was an alleged conflict of interest between the eldest child and the two younger children. That contention is not preserved for our review inasmuch as the father failed to request the removal of the Attorney for the Children (AFC) (see Matter of Aaliyah H. [Mary H.], 134 A.D.3d 1574, 1575, 21 N.Y.S.3d 917 [4th Dept. 2015], lv denied 27 N.Y.3d 906, 2016 WL 3083874 [2016] ; see also Matter of Shonyo v. Shonyo, 151 A.D.3d 1595, 1596, 56 N.Y.S.3d 390 [4th Dept. 2017], lv denied 30 N.Y.3d 901, 2017 WL 4543499 [2017] ). For the same reason, the father's contention that the AFC was biased against him is unpreserved for our review (see Matter of Elniski v. Junker, 142 A.D.3d 1392, 1393, 38 N.Y.S.3d 478 [4th Dept. 2016] ; Matter of Nicole VV., 296 A.D.2d 608, 613, 746 N.Y.S.2d 53 [3d Dept. 2002], lv denied 98 N.Y.2d 616, 752 N.Y.S.2d 2, 781 N.E.2d 914 [2002] ), as are the father's assertions that the AFC improperly substituted her judgment for that of the younger siblings and otherwise did not provide the oldest child with effective representation (see Matter of Emmanuel J. [Maximus L.], 149 A.D.3d 1292, 1297, 52 N.Y.S.3d 154 [3d Dept. 2017] ).
Finally, we conclude that there is a sound and substantial basis in the record for Family Court's order terminating the father's parental rights and freeing the children for adoption (see Matter of Jyashia RR. [John VV.], 92 A.D.3d 982, 985, 938 N.Y.S.2d 645 [3d Dept. 2012] ; see generally Matter of Martha S. [Linda M.S.], 126 A.D.3d 1496, 1497, 6 N.Y.S.3d 373 [4th Dept. 2015], lv dismissed in part and denied in part 26 N.Y.3d 941, 17 N.Y.S.3d 58, 38 N.E.3d 800 [2015] ).