Opinion
7575
11-13-2018
IN RE EVAN J., a Dependent Child Under the Age of Eighteen Years, etc., Donavan J., Respondent–Appellant, v. Saint Dominic's Home, Petitioner–Respondent.
John R. Eyerman, New York, for appellant. Warren & Warren, P.C., Brooklyn (Ira L. Eras of counsel), for respondent. Kenneth M. Tuccillo, Hastings on Hudson, attorney for the child.
John R. Eyerman, New York, for appellant.
Warren & Warren, P.C., Brooklyn (Ira L. Eras of counsel), for respondent.
Kenneth M. Tuccillo, Hastings on Hudson, attorney for the child.
Sweeny, J.P., Manzanet–Daniels, Gische, Gesmer, Singh, JJ.
The finding of permanent neglect is supported by clear and convincing evidence ( Social Services Law § 384–b[7], [3][g] ). The record shows that the agency exerted diligent efforts to encourage and strengthen the father's relationship with the child by referring him to counseling, domestic violence, parenting, and drug treatment programs, advising him of the need to attend and complete such programs, and facilitating regular visitation with the child (see e.g. Matter of Ne k ia C. [Kevin E.C.-Laurel S. McC.], 155 A.D.3d 431, 63 N.Y.S.3d 234 [1st Dept. 2017] ; Matter of Felicia Malon Rogue J.[Lena J.], 146 A.D.3d 725, 46 N.Y.S.3d 66 [1st Dept. 2017] ).
The father engaged in some of the services to which he was referred and completed domestic violence and parenting programs. However, despite the agency's diligent efforts, during the statutorily relevant period, he failed to meaningfully address the problems leading to the child's placement, particularly, his domestic violence issue. Indeed, notwithstanding having attended a domestic violence program, the father was arrested and incarcerated for assaulting the mother in violation of an order of protection, and posted threatening comments on social media directed at the foster mother (see Matter of Nathaniel T., 67 N.Y.2d 838, 840, 501 N.Y.S.2d 647, 492 N.E.2d 775 [1986] ; Matter of Cerenithy B.[Ecksthine B.], 149 A.D.3d 637, 638, 51 N.Y.S.3d 89 [1st Dept. 2017], lv denied 29 N.Y.3d 1106, 61 N.Y.S.3d 195, 83 N.E.3d 203 [2017] ; Matter of Charles Jahmel M.[Charles E.M.], 124 A.D.3d 496, 2 N.Y.S.3d 98 [1st Dept. 2015], lv denied 25 N.Y.3d 905, 2015 WL 2105786 [2015] ). The father also failed to visit the child consistently. The agency was not a guarantor of the father's success in overcoming his predicament (see Matter of Sheila G., 61 N.Y.2d 368, 385, 474 N.Y.S.2d 421, 462 N.E.2d 1139 [1984] ).
Nor did the court abuse its discretion in denying the father's counsel's request for a continuance to secure further testimony from a former caseworker whose progress notes were admitted into evidence (see generally Matter of Steven B., 6 N.Y.3d 888, 817 N.Y.S.2d 599, 850 N.E.2d 646 [2006] ; Matter of Isaac Howard M. [Fatima M.], 90 A.D.3d 559, 560, 936 N.Y.S.2d 11 [1st Dept. 2011], lv dismissed, denied 18 N.Y.3d 975, 944 N.Y.S.2d 476, 967 N.E.2d 701 [2012] ). The caseworker had abruptly resigned and moved out of state where she was not amenable to service of a subpoena.
A preponderance of the evidence at the dispositional hearing supports the finding that the child's best interests would be served by terminating the father's parental rights (see Matter of Star Leslie W., 63 N.Y.2d 136, 147–148, 481 N.Y.S.2d 26, 470 N.E.2d 824 [1984] ) so as to facilitate the child's adoption by his kinship foster mother, with whom he has lived since the age of four months, and with whom he is well-cared for and thriving (see Matter of Nephra P.[John Lee P.], 149 A.D.3d 642, 51 N.Y.S.3d 91 [1st Dept. 2017] ).
Contrary to the father's argument, especially in light of his lack of insight or meaningful progress over a period of several years, a suspended judgment was unwarranted (see Matter of Walter D.H.[Zaire L.], 91 A.D.3d 950, 951, 938 N.Y.S.2d 567 [2d Dept. 2012] ). Termination of the father's parental rights, freeing the child for adoption, would provide the child with the opportunity to have a permanent family situation.