Opinion
2013-06-20
In re Alford Isaiah B., III, and Another, Dependent Children Under the Age of Eighteen, etc., Alford B., Jr., Respondent–Appellant, The Children's Aid Society, Petitioner–Respondent.
Mayer Brown LLP, New York (Lisa H. Miller of counsel), for appellant. Rosin Steinhagen Mendel, New York (Douglas H. Reiniger of counsel), for respondent.
Mayer Brown LLP, New York (Lisa H. Miller of counsel), for appellant. Rosin Steinhagen Mendel, New York (Douglas H. Reiniger of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (John A. Newbery of counsel), attorney for the children.
TOM, J.P., ACOSTA, SAXE, FREEDMAN, JJ.
Order, Family Court, Bronx County (Monica Drinane, J.), entered on or about April 3, 2012, which, to the extent appealed from, determined, following a fact-finding hearing, that respondent father permanently neglected the subject children, unanimously affirmed, without costs.
Respondent's argument that the Family Court erred in admitting the records of the agency that was initially assigned to the case is not preserved for appellate review, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. A proper foundation was laid for their admission and respondent, who received a copy of the records in advance of the hearing, failed to challenge any specific entry.
The agency demonstrated by clear and convincing evidence that it repeatedly tried to contact respondent in writing and by telephone and made referrals in order to assist him in completing the service plan, but he failed to respond, failed to consistently visit the children, and did not complete a drug treatment program or other programs to which he was referred ( see In re Sheila G., 61 N.Y.2d 368, 385, 474 N.Y.S.2d 421, 462 N.E.2d 1139 [1984] ).
The court was permitted to draw a negative inference from respondent's failure to testify ( see Matter of Nassau County Dept. of Social Servs. v. Denise J., 87 N.Y.2d 73, 79, 637 N.Y.S.2d 666, 661 N.E.2d 138 [1995] ).