Opinion
11-18-2015
In the Matter of HEZEKIAH L.J. (Anonymous), also known as Hezekiah J. (Anonymous), also known as Hezekiah C. (Anonymous).Administration for Children's Services, et al., respondents;Michael J. (Anonymous), appellant.
Robert Marinelli, New York, N.Y., for appellant. Carrieri & Carrieri, Mineola, N.Y. (Ralph R. Carrieri of counsel), for respondent Little Flower Children and Family Services of New York. Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Marcia Egger of counsel), attorney for the child. RUTH C. BALKIN, J.P., L. PRISCILLA HALL, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.
Robert Marinelli, New York, N.Y., for appellant.
Carrieri & Carrieri, Mineola, N.Y. (Ralph R. Carrieri of counsel), for respondent Little Flower Children and Family Services of New York.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Marcia Egger of counsel), attorney for the child.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.
Opinion
Appeal from an order of fact-finding and disposition of the Family Court, Kings County (Ilana Gruebel, J.) dated April 21, 2014. The order, after a fact-finding hearing, insofar as appealed from, found that the father permanently neglected the subject child.
ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.
In November 2010, in the Supreme Court, Kings County, the father entered a plea of guilty to murder in the second degree of his three-year old daughter, the sister of the subject child, and to assault in the second degree for the injuries he inflicted on the subject child, who was 17 months old at the time of the incident. Subsequently, the Family Court, Kings County (Ambrosio, J.), determined that the father had severely and repeatedly abused the subject child. The court placed the child in foster care and excused the petitioner Little Flower Children and Family Services of New York (hereinafter the petitioner) from making reasonable efforts to reunite the father with the subject child.
The order appealed from determined, after a fact-finding hearing, that the petitioner had established, by clear and convincing evidence, that the father had permanently neglected and severely abused the subject child. The order also determined, upon a dispositional hearing, that the petitioner had established, by clear and convincing evidence, that the best interests of the subject child required termination of the father's parental rights and transfer of guardianship and custody of the subject child jointly to the Commissioner of Social Services and the petitioner for the purpose of adoption. The father has not appealed the finding of severe abuse, or the findings and conclusions of the Family Court regarding termination of his parental rights; instead, the father seeks to overturn the finding of permanent neglect.
12 The Family Court properly determined that the petitioner established, by clear and convincing evidence, that the father permanently neglected the subject child (see Social Services Law 384–b[7][a]; see also Matter of Yamilette M.G. [Marlene M.], 118 A.D.3d 698, 699, 986 N.Y.S.2d 485; Matter of Dakota Y. [Robert Y.], 97 A.D.3d 858, 859–860, 948 N.Y.S.2d 176). With respect to the threshold determination of whether the petitioner made diligent efforts to reunite the subject child and the father, pursuant to Family Court Act § 1039–b, the father's convictions for murder in the second degree and assault in the second degree relieved the petitioner from any requirement to make diligent efforts to reunite the father and child (see Matter of Dashawn W. [Antoine N.], 21 N.Y.3d 36, 51, 970 N.Y.S.2d 474, 992 N.E.2d 402; Matter of Marino S., 100 N.Y.2d 361, 372, 763 N.Y.S.2d 796, 795 N.E.2d 21). Neither the issuance of an order of protection barring the father from contact with the subject child (see Matter of Alex Jordan D., 66 A.D.3d 1013, 1014, 888 N.Y.S.2d 147; Matter of Elizabeth Susanna R., 11 A.D.3d 619, 620, 783 N.Y.S.2d 641), nor the father's incarceration exempted the father from his obligation to plan for the subject child (see Matter of Kaheem Jamal T., 66 A.D.3d 690, 690, 885 N.Y.S.2d 634). The petitioner established, by clear and convincing evidence, inter alia, that the father failed for a period of more than one year following the subject child's placement with the petitioner to substantially plan for the child's future (see Social Services Law 384–b[7][a]; Matter of Yamilette M.G. [Marlene M.], 118 A.D.3d 698, 699, 986 N.Y.S.2d 485; Matter of Dakota Y. [Robert Y.], 97 A.D.3d 858, 859–860, 948 N.Y.S.2d 176).
Accordingly, the Family Court properly determined that the father permanently neglected the subject child, and the order of fact-finding and disposition must be affirmed insofar as appealed from.