The diligent efforts requirement, in turn, compels the petitioning agency to attempt reasonable and practical means to "encourage a meaningful relationship between the parent and his or her children and includes providing counseling, making suitable arrangements for visitation with the children, providing services and other assistance aimed at ameliorating or resolving the problems preventing discharge of the children to the parent's care, and keeping the parent informed of the children's progress and development" (Matter of Shannon U., supra, at 753; see, Social Services Law § 384-b [f]). In so doing, the petitioning agency must tailor its plan to fit each parent's individual circumstances (see, Matter of Sonia H., 177 A.D.2d 575, 577), and the plan ultimately adopted by the agency must be realistic (see, Matter of Jessica UU., 174 A.D.2d 98, 100-102; seealso, Matter of Rita VV., 209 A.D.2d 866, 867). Based upon our review of the record as a whole, we are unable to conclude that the plan formulated by petitioner indeed was realistic under the circumstances and, as such, we are of the view that petitioner failed to meet its statutory duty to exercise diligent efforts to strengthen the relationship between respondents and their children.
We agree with Family Court that petitioner complied with its threshold statutory obligation to exercise diligent efforts to encourage and strengthen the relationship between respondent and the child (see Social Services Law § 384–b [7 ][a]; Matter of Star Leslie W., 63 N.Y.2d 136, 142, 481 N.Y.S.2d 26, 470 N.E.2d 824 [1984] ). To satisfy this duty, petitioner must make practical and reasonable efforts to ameliorate the problems preventing reunification and strengthen the family relationship by such means as assisting the parent with visitation, providing information on the child's progress and development, and offering counseling and other appropriate educational and therapeutic programs and services (see Matter of Thomas JJ., 20 A.D.3d 708, 709–710, 798 N.Y.S.2d 237 [2005] ; Matter of Jessica UU., 174 A.D.2d 98, 100, 578 N.Y.S.2d 925 [1992] ). Here, petitioner referred respondent to services, including parenting classes, preventive services, substance abuse evaluations and treatment, domestic violence education, family counseling services and mental health evaluations, as well as individual meetings with petitioner's caseworker in which, among other things, respondent was encouraged to terminate her relationship with the child's father, who had a history of violence against respondent and others.
We agree with Family Court that petitioner complied with its threshold statutory obligation to exercise diligent efforts to encourage and strengthen the relationship between respondent and the child ( seeSocial Services Law § 384–b [7][a]; Matter of Star Leslie W., 63 N.Y.2d 136, 142, 481 N.Y.S.2d 26, 470 N.E.2d 824 [1984] ). To satisfy this duty, petitioner must make practical and reasonable efforts to ameliorate the problems preventing reunification and strengthen the family relationship by such means as assisting the parent with visitation, providing information on the child's progress and development, and offering counseling and other appropriate educational and therapeutic programs and services ( see Matter of Thomas JJ., 20 A.D.3d 708, 709–710, 798 N.Y.S.2d 237 [2005]; Matter of Jessica UU., 174 A.D.2d 98, 100, 578 N.Y.S.2d 925 [1992] ). Here, petitioner referred respondent to services, including parenting classes, preventive services, substance abuse evaluations and treatment, domestic violence education, family counseling services and mental health evaluations, as well as individual meetings with petitioner's caseworker in which, among other things, respondent was encouraged to terminate her relationship with the child's father, who had a history of violence against respondent and others.
Thus, the salient question is whether the state of the law put Boyko and Romeling on notice that their conduct was clearly unconstitutional ( see Hope v Pelzer, 536 US 730, 741; Saucier v Katz, 533 US at 202). While it was clearly established during the relevant time period that "a parent has `a right to the care and custody of a child, superior to that of all others, unless he or she has abandoned that right or is proved unfit to assume the duties and privileges of parenthood'" ( Matter of Male Infant L., 61 NY2d 420, 426, quoting People ex rel. Kropp v Shepsky, 305 NY 465, 468 [1953]), the law also obliged DSS to make diligent efforts to encourage and strengthen the parental relationship and assist the parent in planning for the future of the child in foster care, in an ultimate effort to reunite the child with his or her family ( see Social Services Law § 384-b [a]; Matter of Sheila G, 61 NY2d 368, 385-386; Matter of Jessica UU., 174 AD2d 98, 100). In our view, it was objectively reasonable for Boyko and Romeling to believe that their conduct was lawful under the circumstances they confronted.
It was thus error for the Family Court to dismiss both the petition and the motion ( see Family Ct Act § 632[a]), and it must now, on remittitur, conduct a hearing on the issues raised in the motion. Moreover, even if the Family Court determines that the mother did not violate the terms and conditions of the order of suspended judgment and dismisses the permanent neglect petition on that ground, it must consider, at the hearing, whether it is in Jonathan's best interests to discharge him to his mother's care ( see Matter of Michael B., 80 N.Y.2d 299, 307; Matter of Nicole Lee B., 256 A.D.2d 1103, 1104; Matter of Frances Aisha S., 238 A.D.2d 512, 513; Matter of Jessica UU, 174 A.D.2d 98, 102). Accordingly, we remit the matter to the Family Court, Queens County, for a hearing to be conducted within 20 days of service upon the respondent of this decision and order, on the issues of whether the mother violated the terms and conditions of the order of suspended judgment and, if so, whether her parental rights should be terminated, and the best interests of the child.
The determination of the Family Court, which had the opportunity to see and hear the witnesses, should not be disturbed absent a showing that it is unsupported by the record (see Salvati v. Salvati, 221 A.D.2d 541). The record supports the Family Court's determination that the petitioner failed to undertake diligent efforts to strengthen familial ties before seeking to terminate the respondent's parental rights (see Matter of Sheila G., supra; Matter of Little Flower Children's Servs. v. Selena Maria W., 253 A.D.2d 556, 557; Matter of Alex LL., supra; Matter of Jesus JJ., 223 A.D.2d 955). In particular, the agency failed to tailor its efforts to the needs of this particular parent and child (see Matter of Alex LL., supra; Matter of Jesus JJ., supra; Matter of Jessica UU., 174 A.D.2d 98). O'BRIEN, J.P., FRIEDMANN, McGINITY and H. MILLER, JJ., concur.
It is settled law that "a change in an established custody arrangement should be allowed only upon a showing of a sufficient change in circumstances demonstrating a real need for a change in order to insure the child's best interest" (Matterof Muzzi v. Muzzi, 189 A.D.2d 1022, 1023; see,Matter of Van Hoesen v. Van Hoesen, 186 A.D.2d 903). "Such a change in circumstances may be demonstrated by, inter alia, * * * interference with the noncustodial parent's visitation rights and/or telephone access * * *" (Matter of Markey v. Bederian, 274 A.D.2d 816, 817 [citations omitted]). Moreover, where a respondent moves to dismiss a modification proceeding at the conclusion of the petitioner's proof, the court must accept as true the petitioner's proof and afford the petitioner every favorable inference that reasonably could be drawn therefrom (see, Matter of Jessica UU. [Ira UU.], 174 A.D.2d 98, 100; see also, CPLR 4401; Family Ct Act § 165 [a]). Importantly, "[q]uestions of witness credibility are to be resolved in favor of the nonmoving party as well" (Wayne County Dept. of Social Servs. v. Titcomb, 124 A.D.2d 989, 989).
An agency's diligent efforts may be evidenced by its establishment of realistic and individualized plans, as well as its provision of substantial assistance in complying with those plans (see, Matter of Jeremy KK. [Gordon KK.], 251 A.D.2d 904, 905). The plans thus devised must be "reasonable and practical * * * to encourage and develop a meaningful family relationship, which must include counseling, * * * arrang[ing] for visitation, providing services * * * aimed at * * * resolving the problems preventing * * * [a reunion], and keeping respondents informed of the child's progress and development" (Matter of Jessica UU. [Ira UU.], 174 A.D.2d 98, 100). At the same time, however, "the agency is not charged with a guarantee that the parent succeed in overcoming his or her [impediments to reunion]" (Matter of Sheila G., 61 N.Y.2d 368, 385). To the contrary, it is the "respondent's obligation to use the services provided and to take the initiative and responsibility to plan for the children's futures" (Matter of Michael RR. [Christine SS.], 222 A.D.2d 890, 891) and "where a parent continues to deny his [or her] problems * * * it cannot be said that the agency did not exercise due diligence" (Matter of Chianti FF. [Benjamin GG.], 205 A.D.2d 849, 851).
At this stage, however, we believe that the matter should be remitted to Family Court for an expedited hearing and determination as to whether the father is a fit parent and entitled to custody of the child (see,Matter of Michael B. [Marvin B.], supra, at 317-318). In proceeding No. 2, the critical issue is whether DSS met its burden of establishing that the plan it prescribed for the father was "realistic and tailored to fit [his] individual situation" (Matter of Jesus JJ. [Nilsa KK.], 223 A.D.2d 955; see,Matter of Jessica UU. [Ira UU.], 174 A.D.2d 98). As earlier noted, DSS made no effort to satisfy that burden and Family Court repeatedly thwarted the father's efforts to establish the lack of any reasonable basis for the plan that was put in place. Of course, given that the child never was taken from the father and no valid reason has been shown for denying the father custody in the first instance, we believe that DSS had little hope of identifying any circumstances preventing the "return" of the child to his custody.
The only reference that the court made to the testimony of respondents' other expert, Ms. Winter, was related to the grade she gave to Ms. Lafontaine's efforts. The record reflects that, while the question is close, this is not the type of case where the petitioning agency embarked on a diligent course, but faced utterly uncooperative or indifferent parents ( see, Matter of Sheila G., supra, 61 N.Y.2d 368, 385; Matter of Jessica UU., 174 A.D.2d 98, 101), but one where the agency imposed a plan without any realistic or meaningful effort to provide the assistance necessary for the parents to overcome the particular problems that separated them from their children ( see, Matter of Jamie M., 63 N.Y.2d 388, 394-395, supra; Matter of Jessica UU., supra). As found by the Family Court, "[a]t the early stages of placement, [respondents] didn't do very much, or at least it certainly doesn't appear.