In re James J.
Opinion of the Court
Respondent is the father of the five children at issue here (born in 1999, 2001, 2003, 2004 and 2006). Respondent was incarcerated in October 2005. In April 2009, while respondent was still incarcerated, the children were removed from the custody of their mother, with her consent, and placed in foster care with maternal relatives. Respondent admittedly knew about the children’s placement. Although respondent was released from prison in December 2009, he was reincarcerated on a parole violation in May 2010 and remained incarcerated until May 2011.
In March 2011, petitioner commenced this proceeding pursuant to Social Services Law § 384-b against, among others, respondent alleging permanent neglect. A fact-finding hearing was held in May 2011 solely with respect to respondent, after which Family Court determined that respondent had permanently neglected the children. Respondent was again released from prison shortly thereafter. Following a dispositional hearing in July 2011 — at which respondent was present but did not testify — Family Court terminated respondent’s parental rights. Respondent now appeals and we affirm.
In a permanent neglect proceeding, the threshold inquiry is whether the agency established, by clear and convincing evidence, that it made “diligent efforts to encourage and strengthen the parental relationship” (Social Services Law § 384-b [7] [a]; see Matter of Jyashia RR. [John VV.], 92 AD3d 982, 983 [2012];
Respondent first argues that petitioner failed to prove that it made the requisite diligent efforts to reunite him with the children because it had no contact with respondent during his periods of incarceration. We disagree. Although petitioner concedes its lack of contact with respondent while he was incarcerated, this is not a case where the incarceration persisted for the entire duration of the children’s foster care placement (compare Matter of Shi’ann FF., 47 AD3d 1133 [2008]) and, significantly, respondent does not deny the efforts made by petitioner during the six months in which he was released from incarceration prior to the commencement of this proceeding. The evidence adduced at the fact-finding hearing established that, upon his release from prison in December 2009, respondent called John Berry — petitioner’s caseworker who was assigned to the children since 2005 — and they met the following day. During the ensuing six months, Berry arranged for respondent to have regular visitation with the children — at various locations and under various circumstances — which eventually took place in respondent’s apartment. Because respondent’s one-bedroom efficiency-style apartment was not suitable for the children to stay overnight, he encouraged respondent to obtain
Nor do we find any error in Family Court’s finding that respondent permanently neglected the children. In this regard, the agency was required to establish, by clear and convincing evidence, that respondent failed “substantially and continuously or repeatedly to maintain contact with or plan for the future of the child[ren], although physically and financially able to do so” for a period of at least one year or 15 out of the most recent 22 months following the date the children were taken into petitioner’s care (Social Services Law § 384-b [7] [a]; see Matter of Hailey ZZ. [Ricky ZZ.], 19 NY3d 422, 429 [2012]; Matter of Marquise JJ. [Jamie KK.], 91 AD3d at 1138).
Here, respondent testified that, prior to the filing of the
We also reject respondent’s contention that Family Court should have entered a suspended judgment in lieu of terminating his parental rights (see Family Ct Act § 631). The evidence adduced at the dispositional hearing demonstrated that respondent had been released from prison for approximately two months, had not yet completed a substance abuse evaluation, as required by the conditions of his parole, and had not yet obtained his own apartment. By this time, the children had been in foster care for over two years — of which respondent had been incarcerated for approximately 20 months — were doing well in the foster home and the foster parents wished to adopt them. Under these circumstances and according deference to Family Court (see Matter of James X., 37 AD3d at 1007), we find that the determination that it was in the children’s best interests to terminate respondent’s parental rights is supported by a sound and substantial basis in the record (see e.g. Matter of Marquise JJ. [Jamie KK.], 91 AD3d at 1140-1141; Matter of Trestin T. [Shawn U.], 82 AD3d at 1537).
Finally, in light of the Court of Appeals’ recent decision in Matter of Hailey ZZ. (Ricky ZZ.) (19 NY3d 422 [2012], supra), it is now beyond question that Family Court does not have the authority to grant respondent’s request for posttermination visitation (see also Matter of Alexa L. [Nilza L.], 79 AD3d 1290, 1293 [2010]).
Inasmuch as the record demonstrates respondent’s ongoing contact with the children, the issue is whether he adequately planned for their future.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.