In re Lutheran Soc. Servs. of N.Y.

Full title: In the Matter of Lutheran Social Services of New York for the Guardianship…

Court: Family Court, Bronx County

Date published: Oct 18, 2016

2016 N.Y. Slip Op. 51802 (N.Y. Fam. Ct. 2016)

Opinion

B XXXXX/2014

10-18-2016

In the Matter of Lutheran Social Services of New York for the Guardianship and Custody of M.J.

Carrieri & Carrieri, P.C., Attorneys for Petitioner LSSNY (by Dwight Kennedy, Esq.) 200 Old Country Road, Mineola, New York 11501. Telephone: 516-248-1188. Ellen Winter Mendelson, Esq., Attorney for Respondent Mother J. C., 184 East 161 Street, 2d Floor, Bronx, NY 10451. Telephone: 914-525-1934. Frances P. Ferraro, Esq., Attorney for Respondent Father L. J., 180 East 162 Street, Suite 1E, Bronx, NY 10451. Telephone: 914-329-5913. The Legal Aid Society, Juvenile Rights Practice (by Cynthia Rivera, Esq.), Bronx Court Office, 900 Sheridan Avenue, 6th Floor, Bronx, NY 10451. Telephone: 718-579-7900.

Carol R. Sherman, J.

Carrieri & Carrieri, P.C., Attorneys for Petitioner LSSNY (by Dwight Kennedy, Esq.) 200 Old Country Road, Mineola, New York 11501. Telephone: 516-248-1188. Ellen Winter Mendelson, Esq., Attorney for Respondent Mother J. C., 184 East 161 Street, 2d Floor, Bronx, NY 10451. Telephone: 914-525-1934. Frances P. Ferraro, Esq., Attorney for Respondent Father L. J., 180 East 162 Street, Suite 1E, Bronx, NY 10451. Telephone: 914-329-5913. The Legal Aid Society, Juvenile Rights Practice (by Cynthia Rivera, Esq.), Bronx Court Office, 900 Sheridan Avenue, 6th Floor, Bronx, NY 10451. Telephone: 718-579-7900. Carol R. Sherman, J.

On August 8, 2014, Lutheran Social Services of New York (LSSNY) filed a petition to terminate the parental rights of Respondent Mother J. C. alleging that, notwithstanding Petitioner's diligent efforts to assist her, Respondent Mother permanently neglected the child M. J. (DOB XX/XX/2009) as defined in Social Services Law § 384-b (7) and also alleging that the consent of Respondent Father L J. to the adoption of the child M. J. was not required pursuant to Domestic Relations Law § 111 (1) (d), or, in the alternative, that Respondent Father L.J. had abandoned the child as defined in Social Services Law § 384-b (4) (b) and (5).

The court has reviewed and considered the testimony of Respondent Mother, Antoinette Taylor, Executive Director for LSSNY Children's Services, Marek Kazimierczyk, LSSNY case planner, and Amy Miranda, LCSW, M. J.'s therapist. The following documents were admitted into evidence: Petitioner's Exhibit 1 — Birth Certificate of M. J. Petitioner's Exhibit 2 — Response from Putative Father Registry Respondent Mother's Exhibit A — Letter from LSSNY Paula Benjamin-Howard, MSW, Director of Family Fostercare, to Respondent Mother, July 24, 2013 and Family Treatment Conference (FTC) Summary Report, January 7, 2014 Respondent Mother's Exhibit B — FTC Summary Report, June 23, 2014 Respondent Mother's Exhibit C — FTC Summary Report, July 11, 2012 Respondent Mother's Exhibit D — Letter from Amy Miranda, LCSW, to Respondent Mother, April 24, 2014 Respondent Mother's Exhibit E — Letter from Amy Miranda, LCSW, to Respondent Mother, April 24, 2014 Respondent Mother's Exhibit F — Letter from Respondent Mother to Amy Miranda, LCSW, February 18, 2014

On December 27, 2011, ACS filed petitions NN XXXXX-XX/2011 alleging child neglect by Respondent Mother and stating that removal of M. J. and her brother F. W. (DOB XX/XX/2004) from Respondent Mother's care was necessary to avoid imminent harm or risk of harm to the life or health of the children. Based on Respondent Mother's arrest and incarceration and the presence of the children during her alleged criminal act, this court remanded the children to foster care in the care of the ACS Commissioner. ACS placed the children in foster care under the supervision of Petitioner LSSNY. On April 22, 2012, the court accepted Respondent Mother's consent to the entry of an Order of Fact-Finding of child neglect, without admission, pursuant to Family Court Act § 1051 (a), as to allegations made by ACS that on December 26, 2011, Respondent Mother was arrested for grand larceny and incarcerated. The children were with her at the time of the incident and Respondent Mother ran out of the store and left the children. The court found that the children were neglected children as defined in section 1012 of the Family Court Act and that they had been neglected by Respondent Mother. The court continued the remand of the children in foster care. On August 16, 2012, the court issued a dispositional order placing the children in foster care.

Respondent Mother has been continuously incarcerated since she was arrested in December 2011. She remained at Rikers Island until she completed her sentence for grand larceny in New York City. In February 2013, she was transferred to the State of Kentucky pursuant to the execution of a number of outstanding criminal warrants. From February to June or July 2013, Respondent Mother was at the Metro County Jail in the State of Kentucky. She was then transferred to Kentucky Correctional Institute for Women (KCIW). On August 13, 2013, Respondent Mother was moved to the Western Kentucky Correctional Complex (WKCC). She remained at WKCC until September 25, 2015 and was then returned to KCIW, where she continues to be incarcerated.

Since placement in foster care, M. J. has had a difficult journey. She and her brother F.W. were first placed in a non-kinship foster home. At Respondent Mother's request, on January 10, 2012, they were transferred to the home of maternal cousin M.S. where they remained until June 5, 2012. In May 2012, Respondent Mother requested that the agency remove the children from Ms. S.'s home. Respondent Mother was upset because Ms. S. used her credit card to pay for day care for the children and she was concerned about the care Ms. S. was providing to the children. Ms. S., the foster mother, was observed by agency staff to be verbally abusive to the children. Ms. S. then requested the children be removed from her home. The children were moved to the kinship foster home of their maternal aunt, J. C. (same first and surname as that of Respondent Mother), also at Respondent Mother's request. On February 2013, pursuant to an Interstate Compact on the Placement of Children (ICPC) request and approval, F. W. was released to his father, J. W., a non-respondent in this proceeding, who resided in Maryland. M. J. remained in her maternal aunt's home. However, in February 2013, she was removed from that home after the maternal aunt's teenage daughter cut M. J.'s wrists with a knife and abused her. Petitioner initiated an ICPC request to the State of Maryland asking for approval for M. J. to reside with Mr. W. . However, after investigation, the State of Maryland did not approve the ICPC request.

In February 2013, M. J. was placed in the non-kinship foster home of P. R. . In the summer of 2013, the agency sent M.J. to Maryland to visit with her brother F. W. and his father J. W. . The case planner testified that when M.J. returned the ringworm in her scalp was untreated,¹ she was not wearing underwear, had paper in her ear and had been exposed to sexually explicit videos in Mr. W.'s home. Respondent Mother told the case planner she received reports from Foster Mother R. in July 2013 that M.J. was masturbating after her visit with Mr. W. and F. W. in Maryland. The case planner sent M. J.'s medical and psychological evaluations as well as the Butler Child Advocacy Center at Montefiore Hospital evaluation to Respondent Mother.

1 M. J. had contracted ringworm in the foster home of Ms. R.. --------

In March 2014, M. J. was removed from the foster home of Ms. R. because of inappropriate care by the foster mother. M. J. was placed in the non-kinship foster home of S. B. where she has remained and has thrived. M.J. is very bonded to Ms. B. and her family and Ms. B. wishes to adopt M. J. .

PETITIONER'S CASE AS TO RESPONDENT FATHER

LSSNY Case Planner Marek Kazimierczyk

Respondent Father L J. failed to appear for fact-finding hearing in this matter and presented no evidence whatsoever in support of his claim that he had maintained substantial and continuous or repeated contact with the child M. J. as defined in Domestic Relations Law § 111 (1) (d) and, therefore, his consent to the proposed adoption of the child by Foster Parent B. was required.

Pursuant to inquest hearing, the case planner Marek Kazimierczyk testified that at the time of the filing of this petition on August 8, 2014, the name of M. J.'s father was not listed in her birth certificate nor was a father's name registered with the NYS Putative Father Registry. Respondent Mother was not married. Respondent Mother did not submit a sworn written statement naming a father of M. J. . In her meeting with the case planner in January 2012, Respondent Mother claimed she did not know the name of M. J.'s father nor his whereabouts. The case planner learned about L J. in January or February 2014 from Respondent Mother's sister who gave him Mr. J.'s phone number. The case planner contacted Mr. J. . The case planner spoke to Respondent Mother about Mr. J. . She said he was a terrible father and he should not have anything to do with M. J. .

L. J. appeared in court for the first time on March 3, 2014, two and a one-half years after M. J. entered foster care. He filed a paternity petition (P XXXXX/2014) and a custody petition(V XXXXX/2014) for M. J. on February 27, 2014. After a court-ordered DNA test, on April 16, 2015, the court entered an order of filiation on behalf of Respondent Father.

M. J. accidentally encountered L. J. at the laboratory for DNA testing and became extremely frightened. M. J. told her therapist she did not know Mr. J. and had had no contact with him in the past. She told her therapist she wanted to kill Mr. J. and arrest him. She had nightmares about him and said she would not live with or have contact with him. She stated she believed her father was J. W., the father of her older brother F. W. . In July 2014, Mr. J. contacted M. J.'s therapist. Based on the reports from M. J.'s therapist and M. J.'s strong negative reaction to any contact with Mr. J., the court ordered that any visitation between M. J. and Respondent Father should only occur if M. J.'s therapist recommended that it was not contraindicated. It should then be arranged through the therapist. No visitation between M. J. and L J. occurred. Mr. J. last appeared in court on June 22, 2015.

Prior to the filing of this petition, no man other than Mr. J. contacted the agency claiming to be M. J.'s father. Neither L J. nor any other man visited with M. J. . Neither Mr. J. nor any other man sent any cards, gifts or letters for M. J. . Neither Mr. J. nor any other man ever provided any financial support for M. J. .

PETITIONER'S CASE AS TO RESPONDENT MOTHER

LSSNY Case Planner Marek Kazimierczyk

Case planner Kazmierczyk testified that he was assigned to this case at the time M. J. entered foster care, on or about December 27, 2011. The case planner testified that he has had ongoing contact with Respondent Mother since his assignment to this case. He had his first face-to-face contact with her on January 24, 2012 at the New York City Correctional Department on Rikers Island. On January 17, 2012, the agency held a conference with Respondent Mother by telephone to discuss services that would be provided or arranged for by LSSNY. The plan included Respondent Mother's participation in a mental health evaluation, individual therapy, a parenting skills program and visits with the children. On March 27, 2012, the case planner and an ACS caseworker met with Respondent Mother at Rikers Island and reviewed the service plan. According to case planner Kazimierczyk, at that conference Respondent Mother informed him that she heard voices in her head, discussed her psychiatric history and admitted to suicidal attempts in her past. She said she previously had been prescribed psychotropic medication, Zoloft. The case planner said he spoke to Respondent Mother's counselor at Rikers Island and discussed Respondent Mother's service plan and requested that she receive mental health services. Respondent Mother was in ongoing counseling at Rikers Island and she completed an anger management program while there. Respondent Mother told the caseworker that a parenting skills program was not available for her at Rikers Island.

When the children were in the kinship foster homes of M. S. and J. C., Respondent Mother sent cards and letters for the children to the foster homes and telephoned the children in those homes. Respondent Mother also sent cards and letters for M. J. to the case planner and M. J.'s therapist, which were provided to the child.

From 2012 to 2014, the agency case planner arranged for Respondent Mother to participate in Family Treatment Conferences every six months by telephone on July 11, 2012, December 11, 2012, July 18, 2013, January 7, 2014 and June 23, 2014. He mailed a summary of the conference to Respondent Mother following each meeting. Case planner Kazimierczyk said that he tried to contact Respondent Mother on a monthly basis through her caseworkers at the prisons in which she was incarcerated. He testified he was sometimes told Respondent Mother was not available to speak with him.

Case planner Kazimierczyk also arranged visits for Respondent Mother and the children at Rikers Island through the ACS Children of Incarcerated Parents Program (CHIPP). He testified he first contacted CHIPP on December 30, 2011 and arranged for monthly visits. Respondent Mother's first visit with M. J. and F. W. at Rikers Island occurred on January 24, 2012. The visit went well. The case planner testified he would pick up the children at the foster home and take them to the ACS CHIPPS office and accompany them on the trip to Rikers Island. Respondent Mother had visits with the children in February and March 2012 and on April 24, May 22, June 26, July 24 and September 20, 2012. The case planner said he was informed by the Rikers Island correctional facility in October and November 2012 that Respondent Mother was not permitted to have visits because of punitive segregation. Visits resumed on December 28, 2012 and January 8 and February 12, 2013. The case planner stated that Respondent Mother's interaction with the children was appropriate and they read books, ate snacks and played together. On February 12, 2013, Respondent Mother had her last face-to-face visit with M. J. .

In February 2013, upon completion of her sentence at Rikers Island, Respondent Mother was transferred to Metro County Jail in Kentucky based on outstanding criminal warrants pertaining to her criminal convictions in that state. Metro County Jail did not allow or provide for direct telephone communication between Respondent Mother and M. J. . The case planner testified that after Respondent Mother was transferred to Kentucky it was difficult to arrange phone contact between her and M. J. . Respondent Mother was transferred from one facility to another in Kentucky.

After transferring to the State of Kentucky correctional system, Respondent Mother had her first telephone contact with M. J. in July 2013 and they spoke again on September 27, 2013, November 4, 2013, November 22, 2013 and July 31, 2014. Case planner Kazimierczyk tried to contact Respondent Mother through her caseworkers on a monthly basis. He telephoned the Metro County Jail in Kentucky in May and June 2013. He also telephoned Respondent Mother on behalf of M. J. when he made his monthly visits to the foster home of Ms. R. . He testified that he was sometimes told Respondent Mother was not available.

The case planner testified that from 2012 to 2014, Respondent Mother sent about 10 letters to him. She also wrote letters to ACS Commissioner Ronald Richter, the case planner's supervisor and to Paula Howard, the LSSNY Director of Adoption and Children's Services. In one letter, Respondent Mother expressed her concern about the care M. J. was receiving in the foster home of Ms. R. in 2013 and raised the issue of the child suffering from ringworm.

In August 2013, Respondent Mother was transferred from KCIW to Western Kentucky Correctional Complex (WKCC) where she remained until after the filing date of the instant termination of parental rights petition. After numerous attempts to contact Respondent Mother by telephone, the case planner said that he spoke to Respondent Mother on July 18, 2013 and August 30, 2013 through social workers at the prison facilities. He discussed the service plan with Respondent Mother and also spoke to her prison social workers about the service plan. He asked about mental health services that were available at the facilities. The case planner stated that Kentucky correctional facilities offered mental health services to inmates only on an emergency basis. Respondent Mother therefore received mental health services only when she was on a suicide watch.

The case planner stated that in March and April 2014, he was told he could not speak to Respondent Mother because she was in segregation based on her behavior. The case planner made diligent efforts to have monthly contact with Respondent Mother through her social workers at the Kentucky facilities.

The case planner wrote letters to WKCC requesting that Respondent Mother be enrolled in a parenting skills program. She was waitlisted for a parenting skills program at WKCC but did not enroll. Case planner Kazmierczyk testified he wrote a letter requesting Respondent Mother receive a psychiatric evaluation at WKCC. In October 2014, he received a copy of the evaluation. Ongoing therapy was recommended but was not available at the facility.

Respondent Mother did not have contact with M. J. between January 2014 to June 2014 because of problems the case planner encountered in arranging for telephone contact at the Kentucky correctional facilities. The case planner said that the WKCC used the Sirius Communication System and the agency was unable to obtain the documentation that was required to use that system. The case planner provided Respondent Mother with Foster Mother B.'s telephone number so that she could telephone the Foster Mother and child directly. The case planner testified that he provided Respondent Mother with photos of M. J. and received letters and cards for M. J. from Respondent Mother, which he provided to the child. In July 2014, Respondent Mother spoke with M. J. by telephone.

On June 23, 2014, there was a conference at the agency. Respondent Father attended and Respondent Mother appeared by telephone. Respondent Mother was informed of M. J.'s extremely negative reaction to seeing Respondent Father at the DNA testing laboratory. After seeing Respondent Father, M. J. had tantrums, was bed wetting, was crying in her sleep and cursing, and saying she wanted to kill Respondent Father.

On July 31, 2014, the case planner informed Respondent Mother that the agency was filing a termination of parental rights petition against her. The date that Respondent Mother would be released from incarceration in Kentucky was not known nor was there information about the type and location of a residence she would live in after her release.

RESPONDENT MOTHER'S CASE

Amy Miranda, LCSW

Amy Miranda, LCSW, testified she was M. J.'s therapist and had been treating M. J. since August 2011. She was employed at Columbia Presbyterian Hospital. M. J. was originally brought to Ms. Miranda by Respondent Mother. M. J.'s brother F. W. was also treated at the clinic prior to his release to his father. M. J. entered foster care in December 2011 and Ms. Miranda treated M. J. when she was in both kinship and non-kinship foster care.

Ms. Miranda stated that in 2013 she received fewer than five letters from Respondent Mother. Respondent Mother expressed concern as to M. J.'s care and welfare in foster care and expressed regrets as to her prior actions. Ms. Miranda did not have copies of Respondent Mother's letters and did not send the letters to the agency case planner. On December 18, 2013 Ms. Miranda received a package for M. J. from Respondent Mother which contained cards and photos. Ms. Miranda said she spoke to Attorney for the Child about the contents of the package but did not speak to anyone at the agency. Prior to August 2014, she received three letters and three packages for M. J. from Respondent Mother. When M. J. received the packages from Respondent Mother she smiled and appeared happy. M. J. looked at the photos of her, F. W. and Respondent Mother and the knitted goods and a Hello Kitty album that Respondent Mother sent to her. M. J. did not respond to Respondent Mother's letters. Ms. Miranda did not conduct joint sessions with Respondent Mother and M. J. . Prior to the filing date of August 8, 2014 of this termination proceeding, Ms. Miranda did not have any telephone conversations with Respondent Mother and did not send money to Respondent Mother as she requested. Respondent Mother J. C.

Respondent Mother testified on July 5, 2016 by telephone from Western Kentucky Correctional Center. She said she was originally from Gambia, West Africa, and came to the United States in 2000. She testified that she had been granted asylum by the United States, but she did not have the immigration documentation. She said that as of the filing of this petition on August 8, 2014, she did not have any additional criminal charges pending in the United States. She had two children, F. W. (DOB X/XX/2004) and M. J. (DOB X/XX/2009). She testified that prior to her incarceration, she first resided with an uncle and then in a shelter with her two children. Respondent Mother said she had been in mental health services between 2008-2011 and was diagnosed with severe depression, post-traumatic stress disorder and she heard voices in her head. She said she was prescribed medication, Zoloft.

Respondent Mother testified that she was arrested in New York in December 2011 and incarcerated at Rikers Island. She stated that she telephoned the case planner Kazimierczyk in January 2012 and asked that the children M. J. and F. W. be moved from non-kinship foster care to the home of her cousin, M. S. . The children were moved to her cousin's home in January 2012. In April 2012, she informed the caseworker about her concerns with the care that her cousin was providing to the children. Her cousin complained about the children's behavior and requested that ACS pay for day care. However, her cousin did not qualify for day care because she did not work and she used Respondent Mother's money to pay for day care for the children. Respondent Mother was angry at her cousin for doing this. Then her cousin cut off Respondent Mother's phone calls with her children. In June 2012, the children were removed from Ms. S.'s home at Respondent Mother's request and were placed with Respondent Mother's sister J. C. . Respondent Mother said she also provided other resources to the case planner including F. W.'s father J. W., a relative in Ohio, and two friends in New York.

Respondent Mother testified she first visited with the children on January 24, 2012 when they were brought to Rikers Island by the case planner. She had visits with the children at Rikers Island on January 24, March 13, April 24, May 22, June 26, July 24, September 25 and December 28, 2012, and on January 8 and February 12, 2013. She testified she telephoned the children every day when they resided with her cousin M. S. and her sister J. C. .

On March 27, 2012, agency case planner Kazmierczyk and the ACS caseworker met with her in Rikers Island. She said that she did not receive a written service plan on March 27, but provided case planner Kazmierczyk with her counselor's phone number. She received the written service plan in April 2012 after it was sent to her counselor. It included her participation in a mental health evaluation, individual therapy, parenting skills program and job training and services for M. J.. Respondent Mother said she had a mental health evaluation and was in therapy and prescribed medication at Rikers Island, but there was no parenting skills program available. Respondent Mother stated she told case planner Kazmierczyk that she had had a psychological evaluation at Weill Cornell Medical Center prior to her incarceration. He did not request that she sign a HIPAA release for the report.

Respondent Mother said she received Certificates of Completion from Rikers Island for an anger management program and End to Family Violence Program. Respondent Mother said she completed a computer skills class at Rikers Island as well. Respondent Mother said she was placed in punitive segregation for 75 days for a fight in Rikers Island in the fall of 2012 and did not have visits. She was also on a suicide watch because she was depressed. However, she said she telephoned the children.

Respondent Mother said that in her February 2013 visit with M. J. she told case planner Kazmiecyzk about her concerns about M. J.'s treatment at her sister's home. The child's face was red but she was told M. J. fell from the bed. Soon after that, Respondent Mother was informed by the agency that her niece had cut M. J.'s wrists and M. J. was removed from her sister's home on February 14, 2013. The niece was arrested. Respondent Mother blamed her sister. M. J. was placed then with Foster Mother R. . The case planner sent M. J.'s medical records to Respondent Mother. On September 27, 2013 Respondent Mother spoke to M. J. about the incident and to her new foster mother.

Respondent Mother testified that on February 19, 2013, she was transferred from Rikers Island to Metro County Jail in Kentucky. There were no services available to her at Metro County Jail. She said that while in the Metro County Jail she was in segregation because of her religious beliefs and she could not have contact with anyone outside the jail. At first, she did not have money to telephone the case planner. Respondent Mother said that between February 2013 and August 2014 she sent about 10 letters to case planner Kazimierczyk, Supervisor Vega, and Executive Director Antoinette Taylor. She also sent packages, letters and cards for M. J. to Ms. Miranda and the case planner.

In June 2013, Respondent Mother was moved to the Kentucky Correctional Institute for Women (KCIW). She said she faxed and mailed letters to the case planner informing him of her move. On July 18, 2013, Respondent Mother participated by telephone in a conference at the agency and discussed M. J. and her service plan. She requested visits with M. J. and was told Kentucky was too great a distance from New York to arrange in-person visits. She explained that KCIW where she had been placed only offered a GED class. Neither mental health services nor a parenting skills program were available to her.

On July 16, 2013, M. J. went to Maryland to visit her brother F. W. and his father J. W. and returned to New York on August 13, 2013. Respondent Mother said she spoke to M. J. every day when she was in Maryland. She said that M. J. told her she wanted to reside with Mr. W. and F. W. . Respondent Mother said she did not recall being told that when M. J. returned from Mr. W.'s home she had untreated ringworm. Respondent Mother said that M. J. had contracted the ringworm at the foster home before she went to Mr. W.'s home. There were also concerns that M. J. had been exposed to sexually explicit videos while she was with Mr. W.. Respondent Mother said she believed Mr. W. was a good father.

In or about August 2013, Respondent Mother was moved to the Western Kentucky Correctional Complex (WKCC). On September 25, 2015, after the filing of this termination of parental rights petition, Respondent Mother was moved back to Kentucky Correctional Institute for Women. Respondent Mother said she informed case planner Kazimierczyk by letter and telephone each time she was transferred to a different correctional facility and included the phone number of her counselor. Except during the period she was in segregation, including April 2014 after a suicide attempt, Respondent Mother said she spoke to the case planner Kazimierczyk about once a month about her service plan and issues involving M. J. . She also received letters about the Family Treatment Conferences and attended some by telephone. She wrote about 10 letters to agency case planner Kazmierczyk, Supervisor Vega and Executive Director Antoinette Taylor. Respondent Mother said she signed consents for mental health evaluations for F. W. and M. J. and an ICPC for F. W. to go to his father. M. J. was in therapy with Amy Miranda, LCSW, at Columbia Presbyterian, at her request.

Between February 2013 and March 2014, Respondent Mother said she sometimes spoke to M. J. in Ms. R.'s home. Respondent Mother testified that her telephone conversations with M. J. were always warm and loving. She then learned that the agency had moved M. J. to Ms. B.'s home. She said she spoke to Ms. B. once a month and sometimes spoke to M. J.. She sent letters, cards, pictures and packages for M. J. through the child's therapist Amy Miranda. The packages contained such things as blankets, books, candy, stuffed animals, and a handbag. She also telephoned Ms. Miranda. Ms. Miranda said M. J. was having tantrums, problems in school and did not listen.

Respondent Mother testified she read the allegations in the termination of parental rights petition and they were not true. Respondent Mother said she never supported Respondent Father as a resource. Respondent Mother again proposed as resources for M. J. a family member in Ohio with whom M. J. had not had contact since she was one year old and a friend, J. , with whom M. J. had not had contact since she was two years old. Antoinette Taylor, Executive Director LSSNY Children's Services

Respondent Mother also called Antoinette Taylor, Executive Director of LSSNY's Children's Services, as a witness. Ms. Taylor testified she signed the termination of parental rights petition. Ms. Taylor said the petition was based on information she received from the agency case planner and supervisor.

LEGAL ANALYSIS

CASE AS TO RESPONDENT FATHER

The threshold question this court is asked to address is whether Respondent Father L. J. is a "consent father" as defined in Domestic Relations Law § 111 (1) (d) (see also Social Services Law § 384-b [4] which expressly incorporates the provisions of Domestic Relations Law § 111). The statute states that consent to adoption shall be required:

"Of the father, whether adult or infant, of a child born out-of-wedlock and placed with the adoptive parents more than six months after birth, but only if such father shall have maintained substantial and continuous or repeated contact with the child as manifested by: (i) the payment by the father toward the support of the child of a fair and reasonable sum, according to the father's means, and either (ii) the father's visiting the child at least monthly when physically and financially able to do so and not prevented from doing so by the person or authorized agency having lawful custody of the child, or (iii) the father's regular communication with the child or with the person or agency having the care or custody of the child, when physically and financially unable to visit the child or prevented from doing so by the person or authorized agency having lawful custody of the child. The subjective intent of the father, whether expressed or otherwise, unsupported by evidence of acts specified in this paragraph manifesting such intent, shall not preclude a determination that the father failed to maintain substantial and continuous or repeated contact with the child. In making such a determination, the court shall not require a showing of diligent efforts by any person or agency to encourage the father to perform the acts specified in this paragraph"

(Domestic Relations Law § 111 [1] [d]). The statute also provides that if the father "openly lived with the child for a period of six months within the one year period immediately preceding the placement of the child for adoption and who during such period openly held himself out to be the father of such child shall be deemed to have maintained substantial and continuous contact with the child for the purpose of this subdivision" (id.).

Domestic Relations Law § 111 (1) (d) places the burden of proof upon the unwed father to demonstrate by a preponderance of evidence that he has met the dual statutory obligation of providing financial support "of a fair and reasonable sum, according to the father's means" and either at least monthly visits with the child when physically and financially able to do so or "regular communication" with the child or the person or agency having care or custody of the child. Case law is clear that "the father's unexcused failure to satisfy either of these requirements is sufficient to warrant a finding that his consent to the proposed adoption is not required" (Matter of Bella FF. [Margaret GG. -James HH. ], 130 AD3d 1187, 1188 [3d Dept 2015] [internal citations omitted] [emphasis in original]).

Respondent Father L. J. failed to take prompt action to acknowledge M. J.'s birth in 2009. He filed a paternity petition in 2014, five years after M. J.'s birth. He has never lived with M. J. and nor has he had any contact with the child. The one time M. J. encountered him, at the DNA testing site on April 17, 2014, she became extremely frightened and wanted nothing to do with him. Respondent Father J. failed to present good reason for his failure to contact or have any communication with the child prior to the filing of the paternity petition in 2014, nor did he demonstrate any basis for the court to find that he was prevented from having such contact or communication. The court finds that Respondent Father's failure to testify permits a strong negative inference to be drawn against him (see Matter of Nassau County Dept. of Social Servs. v Denise J., 87 NY2d 73, 79 [1995]).

After the filing of the paternity petition, the court did not permit contact between Respondent Father and M. J. based on the recommendation of the child's therapist that further contact would be traumatic to M. J. as manifested by the child's extreme reaction to her encounter with Respondent Father at the DNA testing laboratory and pursuant to the best interests of the child. At no time did Respondent Father provide M. J. with any financial support. Accordingly, the court finds by clear and convincing evidence that Respondent Father L J. failed to maintain substantial and continuous or repeated contact with M. J. as outlined in Domestic Relations Law § 111 (1) (d) and he does not qualify as a "consent father" and, therefore, his consent to the proposed adoption of M. J. by Foster Mother B. is not required. CASE AS TO RESPONDENT MOTHER

In the permanent neglect proceeding as to Respondent Mother, the threshold determination to be made is whether Petitioner LSSNY exercised diligent efforts to strengthen and encourage the parental relationship between Respondent Mother and M. J.. The agency's obligation to undertake diligent efforts to assist a parent is "paramount and pervasive" and proof of diligent efforts is "a necessary prerequisite to any determination of permanent neglect" (Matter of Sheila G., 61 NY2d 368, 371 [1984]). "Diligent efforts" are defined in statute as "reasonable attempts by an authorized agency to assist, develop and encourage a meaningful relationship between the parent and child" (see Social Services Law § 384-b [7] [ f ]; see also Matter of Danielle Nevaeha S.E. [Crystal Delores M.], 107 AD3d 527, 528 [1st Dept 2013], citing Matter of Jules S. [Julio S.], 96 AD3d 448 [1st Dept 2012], lv denied 19 NY3d 814 [2012]; Matter of Dade Wynn F., 291 AD2d 218 [1st Dept 2002], lv denied 98 NY2d 604 [2002]). Diligent efforts include but are not limited to the following:

"(1) consultation and cooperation with the parents in developing a plan for appropriate services to the child and his family;

(2) making suitable arrangements for the parents to visit the child except that with respect to an incarcerated parent, arrangements for the incarcerated parent to visit the child outside the correctional facility shall not be required unless reasonably feasible and in the best interest of the child;

(3) provision of services and other assistance to the parents, except incarcerated parents, so that problems preventing the discharge of the child from care may be resolved or ameliorated;

(4) informing the parents at appropriate intervals of the child's progress, development and health;" (Social Services Law § 384-b [7] [f] [1-4]).

The statute also requires that the agency make suitable arrangements with a correctional facility and other appropriate persons within the correctional facility for an incarcerated parent to visit his or her child, "if such visiting is in the best interests of the child . . . Such arrangements shall include, but shall not be limited to, the transportation of the child to the correctional facility, and providing or suggesting social or rehabilitative services to resolve or correct the problems other than the incarceration itself which impair the incarcerated parent's ability to maintain contact with the child" (Social Services Law § 384-b [7] [f] [5]).

Further, "[w]hen the parent is incarcerated in a correctional facility located outside the state, the provisions of this subparagraph shall be construed to require that an authorized agency make such arrangements with the correctional facility only if reasonably feasible and permissible in accordance with the laws and regulations applicable to such facility;" (id.). In addition, the agency is required to provide information from the NYS Office of Children and Family Services outlining the legal rights and obligation of the incarcerated parent (Social Services Law § 384-b [7] [f] [6]). "Wherever possible, such information shall include transitional and family support services located in the community to which an incarcerated parent shall return" (id.).

The agency must also prepare the service plan in consultation with the incarcerated parent and "the plan shall reflect the special circumstances and needs of the child and the family" (Social Services Law § 409-e [2], as modified by L. 2010, ch. 113). If in-person consultation is "impracticable," the agency is to arrange alternate methods for such consultation such as videoconferencing or teleconferencing (id.).

Social Services Law § 384-b (7) (a) states that a "permanently neglected child" shall mean:

"a child who is in the care of an authorized agency and whose parent or custodian has failed for a period of either at least one year or fifteen out of the most recent twenty-two months following the date such child came into the care of an authorized agency substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child (Social Services Law § 384-b [7] [a]).

Effective June 15, 2010, the Legislature modified the definition of the "permanently neglected child" to include a requirement that the court, in making a determination as to whether a child is a permanently neglected child, shall consider the particular constraints and special circumstances of an incarcerated parent that may impact the parent's ability to substantially and continuously or repeatedly maintain contact with or plan for the future of his or her child (see L. 2010, ch 113; see also Matter of Medina Amor S., 50 AD3d 8, 16 [1st Dept 2008], lv denied 10 NY3d 709 [2008]).

The evidence and testimony presented by Petitioner demonstrated extensive efforts and due diligence by case planner Kazimierczyk to assist Respondent Mother J. C. in making suitable and feasible arrangements to facilitate visits and contact between Respondent Mother and M. J. . Case planner Kazimierczyk identified and recommended services to aid Respondent Mother in developing a meaningful relationship with M. J.. He consistently contacted Respondent Mother's social workers at the correctional facilities to which she was assigned to arrange for appropriate services, taking into account the constraints imposed by her incarceration in Rikers Island and then in the State of Kentucky. Case planner Kazimierczyk assisted Respondent Mother by arranging for face-to-face visits with M. J. and her brother F. W. while Respondent Mother was at Rikers Island. When Respondent Mother was moved to Kentucky correctional facilities, face-to-face contact was no longer practicable because of distance. Telephone contact became difficult because some facilities did not permit direct telephone contact between M. J. and Respondent Mother. Case planner Kazimierczyk arranged alternate communications methods. He telephoned Respondent Mother on behalf of M. J. from the home of Foster Mother R. during his monthly visits. He also provided Respondent Mother with Foster Parent R.'s and Foster Parent B.'s home telephone numbers. Case planner Kazimierczyk spoke with Respondent Mother's counselors at Rikers Island and at each of the three facilities in which she was incarcerated in Kentucky, and provided information as to her needs for counseling and mental health services, including arranging for any services available in each of the facilities. He requested that Respondent Mother be provided with a parenting skills program but she was waitlisted. Case planner Kazimierczyk kept Respondent Mother informed about her obligations to plan for M. J. during periodic Family Treatment Conferences, which he arranged for her to participate in by telephone when possible. He regularly advised Respondent Mother of the adjustment and progress of M. J. in foster care, her health and development, and sent to Respondent Mother M. J.'s reports and evaluations. The case planner's diligent efforts had the goal of assisting Respondent Mother to have a meaningful relationship with M. J., ameliorate or resolve the problems that led to M. J.'s removal from Respondent Mother's care, and aid her in planning for the child's future. The court finds that the Petitioner LSSNY fulfilled its statutory obligation of due diligence in full recognition of the special circumstances and needs of Respondent Mother during her incarceration (see Matter of Duane FF. [Harley GG. ], 135 AD3d 1093, 1094 [3d Dept 2016]).

The court also finds during her incarceration, first in New York City and then in the State of Kentucky, Respondent Mother did, to the best of her abilities, maintain contact with M. J. through telephone calls, letters and visits. The question before the court is whether Respondent Mother adequately planned for the future and the return of M. J.. "The planning requirement contemplates that the parent shall take such steps as are necessary to provide a home that is adequate and stable, under the financial circumstances existing, within a reasonable period of time. Good faith alone is not enough; the plan must be realistic and feasible" (Matter of Star Leslie W., 63 NY2d 136, 143 [1984]).

In this case, Respondent Mother's initial plan for M. J. was to remain in foster care with a relative, first with Respondent Mother's maternal cousin and then with Respondent Mother's sister, pending her release from prison. These plans failed resulting in the maltreatment of M. J. by her caregivers. The maternal cousin was observed by the agency caseworker to verbally abuse both M. J. and her brother F. W. . Subsequently in the home of Respondent Mother's sister, M. J.'s teenage cousin physically assaulted her. Respondent Mother also offered the names of a few friends or relatives, none of whom had a relationship with M. J. and none have ever pursued a relationship with M. J. . The only other plan Respondent Mother has offered is to keep M. J. in long-term foster care during the period of her incarceration which is estimated to extend to at least 2020. In fact, Respondent Mother said that she relied on Foster Mother B. to keep M. J. until she was released.

The appellate courts have rejected such a plan as neither viable nor realistic (see Matter of Gregory B., 74 NY2d 77, 84 [1989]). Respondent Mother's desire to have continuing contact with M. J. must be weighed against M. J.'s desparate need for permanency and stability. Continuing M. J. in foster care limbo until Respondent Mother's undetermined date for release from incarceration in the State of Kentucky "is not in the child's best interest and is antithetical to his [her] need for permanency" (Matter of Kaiden AA.[John BB.], 81 AD3d 1209, 1210 [3d Dept 2011] [internal citations omitted]). The Legislature did not intend "to approve a plan of indefinite foster care for the child of an incarcerated parent who is serving a lengthy prison term and who cannot provide the child with an alternate living arrangement" (Matter of Gregory B., 74 NY2d at 89).

M. J. has experienced a protracted stay in foster care, four years of the seven years of her life. M. J.'s current placement is her fifth foster home. Until her placement with her current foster mother in 2014, she has suffered verbal and physical abuse and inadequate care in three of her four prior foster homes and has been removed from those homes. The Legislature has determined that permanence and stability for the child must be given priority by providing the child "with stable, permanent homes as early as possible" (Matter of Michael B., 80 NY2d 299, 310 [1992] citing Matter of Peter L., 59 NY2d 513, 519 [1983]).

In 1976, the legislature added section 384-b to the Social Services Law recognizing that "the health and safety of children is of paramount importance," and that:

"(iii) the state's first obligation is to help the family with services to prevent its break-up or to reunite it if the child has already left home; and

(iv) when it is clear that the birth parent cannot or will not provide a normal family home for the child and when continued foster care is not an appropriate plan for the child, then a permanent alternative home should be sought for the child" (Social Services Law § 384-
b [1] [a]).

The Court of Appeals "has acknowledged that a primary purpose of the statute is to provide 'a fair and timely basis to free a child for adoption' and '[when] it is clear that natural parents cannot offer a normal home for a child and "continued foster care' is not an appropriate plan, the statute directs that a permanent home be sought (Matter of Gregory B., 74 NY2d at 90 quoting Matter of Joyce T., 65 NY2d at 47; Social Services Law § 384-b [1] [a]). "In connection with parental termination, in this State, foster care is viewed as a temporary way station to adoption or to return to the natural parents, not the purposeful objective for a permanent way of life" (id. emphasis in the original). "Put simply, relegating a child to foster care until he or she is no longer a child is not a viable plan because it is patently inconsistent with the purpose of foster care and, more importantly, it deprives the child of that quality of 'permanency' found by the Legislature to be so essential to proper growth and development" (id.).

The court has considered pursuant to the provisions of Social Services Law § 384-b (7) (a) the special circumstances of Respondent Mother's incarcerations and the particular constraints imposed by her incarceration at Rikers Island and her transfer to correctional institutions in the State of Kentucky. However, in light of the diligent efforts made by Petitioner LSSNY to assist Respondent Mother in establishing a meaningful parental relationship with M. J., the court finds by clear and convincing evidence that Respondent Mother, for a period of least one year following the date M. J. was placed with the agency and prior to the filing of this petition on August 8, 2014, has failed to plan for the future of the child although physically and financially able to do so, notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship.

Accordingly, the court enters a finding that M. J. is a permanently neglected child as defined in Social Services Law § 384-b (7) (a).

This constitutes the decision and order of the court.

Notify counsel and the parties. Dated: Bronx, New York October 18, 2016 Carol R. Sherman, J.F.C. Family Court, Bronx County