Opinion
1410 CAF 17–00999
03-15-2019
In the MATTER OF CALLIE H. Erie County Department of Social Services, Petitioner-Respondent; v. Taleena W., Respondent-Appellant.
WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT–APPELLANT. AMBER R. POULOS, BUFFALO, FOR PETITIONER–RESPONDENT. DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (RICHARD L. SULLIVAN OF COUNSEL), ATTORNEY FOR THE CHILD.
WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT–APPELLANT.
AMBER R. POULOS, BUFFALO, FOR PETITIONER–RESPONDENT.
DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (RICHARD L. SULLIVAN OF COUNSEL), ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Social Services Law
§ 384–b, respondent mother contends that Family Court erred in terminating her parental rights with respect to the subject child on the ground of permanent neglect. We reject that contention. Contrary to the mother's contention, petitioner met its "burden of establishing by clear and convincing evidence that it made diligent efforts to encourage and strengthen the relationship between the mother and [the child] by providing services and other assistance aimed at ameliorating or resolving the problems preventing [the child's] return to [the mother's] care" ( Matter of Savanna G. [Dayelle M.], 118 A.D.3d 1482, 1483, 988 N.Y.S.2d 812 [4th Dept. 2014] [internal quotation marks omitted]; see Matter of Alexander S. [David S.], 130 A.D.3d 1463, 1463, 12 N.Y.S.3d 747 [4th Dept. 2015], lv denied 26 N.Y.3d 910, 2015 WL 7289466 [2015], lv denied and appeal dismissed 26 N.Y.3d 1030, 20 N.Y.S.3d 339, 41 N.E.3d 1154 [2015], rearg. denied 26 N.Y.3d 1132, 27 N.Y.S.3d 495, 47 N.E.3d 775 [2016] ). Initially, we note that the mother does not challenge the efforts that petitioner put forth before she was incarcerated. With respect to the time during which the mother was incarcerated, it is well settled that an agency seeking to terminate the parental rights of an incarcerated parent may fulfill its duty to make such diligent efforts by, inter alia, "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" ( Matter of James J. [James K.], 97 A.D.3d 936, 937, 948 N.Y.S.2d 203 [3d Dept. 2012] ; see Matter of Hailey ZZ. [Ricky ZZ.], 19 N.Y.3d 422, 430, 948 N.Y.S.2d 846, 972 N.E.2d 87 [2012] ; Matter of Caidence M. [Francis W.M.], 162 A.D.3d 1539, 1539–1540, 78 N.Y.S.3d 558 [4th Dept. 2018], lv denied 32 N.Y.3d 905, 2018 WL 4924781 [2018] ). The record here establishes that petitioner engaged in those diligent efforts with the exception of facilitating telephone contact inasmuch as the child was too young to communicate by telephone. We reject the mother's contention that petitioner failed to arrange visitation while she was incarcerated (see generally Hailey ZZ., 19 N.Y.3d at 429, 948 N.Y.S.2d 846, 972 N.E.2d 87 ) inasmuch as the record establishes that the mother's family arranged for her to have five personal visits with the child after the commencement of her incarceration, and "[o]f course, an agency should not be required to secure services for a parent which are merely duplicative of those already being received" ( Matter of Star A., 55 N.Y.2d 560, 565, 450 N.Y.S.2d 465, 435 N.E.2d 1080 [1982] ).Contrary to the mother's further contention, petitioner established that, despite its diligent efforts, the mother failed to plan appropriately for the child's future (see Matter of Jerikkoh W. [Rebecca W.], 134 A.D.3d 1550, 1551, 23 N.Y.S.3d 784 [4th Dept. 2015], lv denied 27 N.Y.3d 903, 2016 WL 1313366 [2016] ). The record demonstrates that the mother failed to "provide any realistic and feasible alternative to having the child[ ] remain in foster care until the [mother's] release from prison ... [, which] supports a finding of permanent neglect" ( Matter of Alex C., Jr. [Alex C., Sr.], 114 A.D.3d 1149, 1150, 980 N.Y.S.2d 187 [4th Dept. 2014], lv denied 23 N.Y.3d 901, 987 N.Y.S.2d 1, 10 N.E.3d 189 [2014] [internal quotation marks omitted] ). Additionally, and of critical importance, we conclude that, "[a]lthough the mother participated in the services offered by petitioner, she did not successfully address or gain insight into the problems that led to the removal of the child and continued to prevent the child's safe return" ( Matter of Giovanni K., 62 A.D.3d 1242, 1243, 878 N.Y.S.2d 846 [4th Dept. 2009], lv. denied 12 N.Y.3d 715, 2009 WL 1851454 [2009] ; see Matter of Michael S. [Kathryne T.], 162 A.D.3d 1651, 1652, 2018 WL 3007510 [4th Dept. 2018], lv. denied 32 N.Y.3d 906, 2018 WL 4958077 [2018] ; Matter of Jayveon S. [Timothy S.], 158 A.D.3d 1283, 1283–1284, 68 N.Y.S.3d 367 [4th Dept. 2018], lv. denied 31 N.Y.3d 908, 2018 WL 2728096 [2018] ).
Finally, the mother contends that the court erred in admitting in evidence at the hearing certain records of petitioner on the ground that they contain double hearsay. We are unable to review that contention because the mother has failed to identify any alleged instances of double hearsay (see Matter of Alyshia M.R., 53 A.D.3d 1060, 1061, 861 N.Y.S.2d 551 [4th Dept. 2008], lv denied 11 N.Y.3d 707, 868 N.Y.S.2d 599, 897 N.E.2d 1083 [2008] ).