Opinion
2012-01-31
In the Matter of LASHAWNDA G.Monroe County Department of Human Services, Petitioner–Respondent;Shawn G., Respondent–Appellant.
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of Counsel), for Respondent–Appellant. David Van Varick, County Attorney, Rochester (Robin Unwin of Counsel), for Petitioner–Respondent.
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of Counsel), for Respondent–Appellant. David Van Varick, County Attorney, Rochester (Robin Unwin of Counsel), for Petitioner–Respondent. Lisa J. Maslow, Attorney for the Child, Rochester, for Lashawnda G.
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, GORSKI, AND MARTOCHE, JJ.
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. Contrary to the father's contention, Family Court did not err in denying his request for post-termination visitation. It is well settled that a parent seeking post-termination visitation must “establish that such contact would be in the best interests of the child[ ]” ( Matter of Andrea E., 72 A.D.3d 1617, 1618, 899 N.Y.S.2d 684, lv. denied 15 N.Y.3d 703, 906 N.Y.S.2d 817, 933 N.E.2d 216 [internal quotation marks omitted]; see Matter of Sean H., 74 A.D.3d 1837, 1838, 901 N.Y.S.2d 893, lv. denied 15 N.Y.3d 708, 909 N.Y.S.2d 22, 935 N.E.2d 814; Matter of Malashia B., 71 A.D.3d 1493, 1495, 897 N.Y.S.2d 374, lv. denied 15 N.Y.3d 701, 905 N.Y.S.2d 803, 931 N.E.2d 1059). The record establishes that the court reviewed the relevant factors before determining that post-termination visitation was not in the child's best interests ( see Matter of Kahlil S., 35 A.D.3d 1164, 1166, 830 N.Y.S.2d 625, lv. dismissed 8 N.Y.3d 977, 836 N.Y.S.2d 546, 868 N.E.2d 229). The evidence presented at the hearing established that the father was serving a 50–year to life sentence in state prison, and he admitted that he had a single unsupervised visit with the child in the 18 months preceding the filing of the instant petition. His only other visitation during that period and the pendency of these proceedings occurred when petitioner's employees brought the child for supervised visitation with the father in jail or in prison. In addition, the child has severe mental challenges and becomes agitated while traveling to the prison. Furthermore, the child has never resided with the father. “We thus conclude that [the father] ‘failed to establish that such [post-termination] contact would be in the best interests of the child[ ]’ ” ( Malashia B., 71 A.D.3d at 1495, 897 N.Y.S.2d 374).
The father further contends that the order erroneously fails to include the court's recommendation that he receive yearly photographs of the child from her foster or adoptive parents. We note, however, that the court expressly noted that its recommendation was not binding on petitioner or any foster or adoptive parents. “The role of the judiciary is to give the rule or sentence ..., and thus the courts may not issue judicial decisions that can have no immediate effect and may never resolve anything” ( Cuomo v. Long Is. Light. Co., 71 N.Y.2d 349, 354, 525 N.Y.S.2d 828, 520 N.E.2d 546 [internal quotation marks omitted]; see generally New York Pub. Interest Research Group v. Carey, 42 N.Y.2d 527, 529–531, 399 N.Y.S.2d 621, 369 N.E.2d 1155). Consequently, such a mere “recommendation” would not properly be included in an order. In any event, there is no dispute that the recommendation has in fact been communicated to the child's foster parents.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.