Opinion
498 CAF 22-00562
06-30-2023
In the MATTER OF AUBREE R., Jaelynn R., and Leigh B. Onondaga County Department of Children and Family Services, Petitioner-Respondent; v. Natasha B., Respondent-Appellant, and Michael R., Respondent.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS R. BABILON OF COUNSEL), FOR RESPONDENT-APPELLANT. ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (ERIN WELCH FAIR OF COUNSEL), FOR PETITIONER-RESPONDENT. ARLENE H. BRADSHAW, SYRACUSE, ATTORNEY FOR THE CHILDREN.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS R. BABILON OF COUNSEL), FOR RESPONDENT-APPELLANT.
ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (ERIN WELCH FAIR OF COUNSEL), FOR PETITIONER-RESPONDENT.
ARLENE H. BRADSHAW, SYRACUSE, ATTORNEY FOR THE CHILDREN.
PRESENT: LINDLEY, J.P., CURRAN, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order terminating her parental rights with respect to the three children who are the subject of this proceeding on the ground of permanent neglect, respondent mother contends that petitioner failed to establish that it exercised diligent efforts to encourage and strengthen the parental relationship both prior to and during the period of her incarceration as required by Social Services Law § 384-b (7) (a). We reject that contention.
"An authorized agency that brings a proceeding to terminate parental rights based upon permanent neglect bears the burden of establishing that it has made ‘diligent efforts to encourage and strengthen the parental relationship’ " ( Matter of Hailey ZZ. [Ricky ZZ.] , 19 N.Y.3d 422, 429, 948 N.Y.S.2d 846, 972 N.E.2d 87 [2012], quoting Social Services Law § 384-b [7] [a] ; see generally Matter of Star Leslie W. , 63 N.Y.2d 136, 142, 481 N.Y.S.2d 26, 470 N.E.2d 824 [1984] ). " ‘[D]iligent efforts’ ... mean reasonable attempts ... to assist, develop and encourage a meaningful relationship between the parent and the child" ( § 384-b [7] [f] [emphasis added]), and they " ‘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 [the parent's] care, and informing the parent[ ] of [the child's] progress’ " ( Matter of Whytnei B. [Jeffrey B.] , 77 A.D.3d 1340, 1341, 907 N.Y.S.2d 760 [4th Dept. 2010] ; see Matter of Caidence M. [Francis W.M.] , 162 A.D.3d 1539, 1539, 78 N.Y.S.3d 558 [4th Dept. 2018], lv denied 32 N.Y.3d 905, 2018 WL 4924781 [2018] ). The "[p]etitioner is not required, however, to guarantee that the parent succeed in overcoming [the parent's] predicaments ... but, rather, the parent must assume a measure of initiative and responsibility" ( Whytnei B. , 77 A.D.3d at 1341, 907 N.Y.S.2d 760 [internal quotation marks omitted]).
"While an agency's obligation to exercise diligent efforts is not obviated by a parent's incarceration ..., 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" ( Caidence M. , 162 A.D.3d at 1539, 78 N.Y.S.3d 558 [internal quotation marks omitted]; see Social Services Law § 384-b [7] [f] ; Matter of Callie H. [Taleena W.] , 170 A.D.3d 1612, 1613, 94 N.Y.S.3d 485 [4th Dept. 2019], lv denied 35 N.Y.3d 905, 2020 WL 3056254 [2020] ).
Here, petitioner established by clear and convincing evidence (see Social Services Law § 384-b [3] [g] [i] ) that it fulfilled its duty to exercise diligent efforts to encourage and strengthen the mother's relationship with the children during the relevant time period, but that the mother failed to plan for the future of the children or to progress meaningfully to overcome the predicaments that initially endangered the children and led to their removal from her care (see Callie H. , 170 A.D.3d at 1613-1614, 94 N.Y.S.3d 485 ; Matter of Jaxon S. [Jason S.] , 170 A.D.3d 1687, 1688-1689, 96 N.Y.S.3d 794 [4th Dept. 2019] ; see generally Star Leslie W. , 63 N.Y.2d at 142, 481 N.Y.S.2d 26, 470 N.E.2d 824 ).
We reject the mother's further contention that she was denied effective assistance of counsel when her attorney failed to object to allegedly inadmissible business records and allegedly prejudicial court exhibits. "It is axiomatic that, because the potential consequences are so drastic, the Family Court Act affords protections equivalent to the constitutional standard of effective assistance of counsel afforded defendants in criminal proceedings" ( Matter of Kelsey R.K. [John J.K.] , 113 A.D.3d 1139, 1140, 978 N.Y.S.2d 560 [4th Dept. 2014], lv denied 22 N.Y.3d 866, 2014 WL 1362321 [2014] [internal quotation marks omitted]; see Matter of Elijah D. [Allison D.] , 74 A.D.3d 1846, 1847, 902 N.Y.S.2d 736 [4th Dept. 2010] ). Here, the mother's attorney successfully objected at the hearing to the admission of numerous records and refused to stipulate to other records. Even assuming, arguendo, that the mother's attorney should have objected to the other evidence offered by petitioner (see generally Matter of Dustin H. , 40 A.D.3d 995, 996, 837 N.Y.S.2d 190 [2d Dept. 2007] ), we conclude that "the record, viewed in totality, reveals that the [mother] received meaningful representation" ( Matter of Carter H. [Seth H.] , 191 A.D.3d 1359, 1360, 140 N.Y.S.3d 658 [4th Dept. 2021] ; see Matter of Nykira H. [Chellsie B.-M.] , 181 A.D.3d 1163, 1165, 121 N.Y.S.3d 453 [4th Dept. 2020] ).
Contrary to the mother's further contention, Family Court did not abuse its discretion in refusing to issue a suspended judgment. At a dispositional hearing, the court "is concerned only with the best interests of the children ... and its determination is entitled to great deference" ( Matter of Cheyenne C. [James M.] , 185 A.D.3d 1517, 1520, 126 N.Y.S.3d 292 [4th Dept. 2020], lv denied 35 N.Y.3d 917, 2020 WL 6930203 [2020] ; see Family Ct Act § 631 ; Star Leslie W. , 63 N.Y.2d at 147, 481 N.Y.S.2d 26, 470 N.E.2d 824 ). Here, at the time of the dispositional hearing, the children had been in foster care for over three years and had bonded with their respective foster parents, who intended to adopt them. In the circumstances of this case, a suspended judgment was not warranted because "any progress made by [the mother] in the months preceding the dispositional determination was not sufficient to warrant any further prolongation of the child[ren]’s unsettled familial status" ( Matter of London J. [Niaya W.] , 138 A.D.3d 1457, 1458, 30 N.Y.S.3d 453 [4th Dept. 2016], lv denied 27 N.Y.3d 912, 2016 WL 4480707 [2016] [internal quotation marks omitted]). We therefore conclude that the court properly terminated the mother's parental rights with respect to the children who are the subject of this proceeding and freed the children for adoption.
We have reviewed the mother's remaining contentions and conclude that none warrants modification or reversal of the order.