Opinion
30 CAF 19–00200
03-13-2020
In the MATTER OF NYKIRA H. Monroe County Department of Human Services, Petitioner–Respondent; v. Chellsie B.-M., Respondent–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR RESPONDENT–APPELLANT. MICHAEL E. DAVIS, COUNTY ATTORNEY, ROCHESTER (CAROL LYNN EISENMAN OF COUNSEL), FOR PETITIONER–RESPONDENT. CLAYTON F. HALE, ROCHESTER, ATTORNEY FOR THE CHILD. CLAYTON F. HALE, ROCHESTER, ATTORNEY FOR THE CHILD.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR RESPONDENT–APPELLANT.
MICHAEL E. DAVIS, COUNTY ATTORNEY, ROCHESTER (CAROL LYNN EISENMAN OF COUNSEL), FOR PETITIONER–RESPONDENT. CLAYTON F. HALE, ROCHESTER, ATTORNEY FOR THE CHILD.
CLAYTON F. HALE, ROCHESTER, ATTORNEY FOR THE CHILD.
PRESENT: PERADOTTO, J.P., CARNI, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It 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 appeals from an order terminating her parental rights with respect to the subject child on the ground of permanent neglect. We reject the mother's contention that petitioner failed to establish that it exercised diligent efforts to encourage and strengthen the parent-child relationship while the mother was incarcerated, as required by section 384–b(7)(a). Where, as here, a parent is incarcerated during the relevant period of time, petitioner's duty to engage in diligent efforts to strengthen the parent-child relationship "may be satisfied by informing the parent of the child['s] well-being and progress, responding to the parent's inquiries, investigating relatives suggested by the parent as placement resources, and facilitating communication between the child[ ] and the parent" ( Matter of Jarrett P. [Jeremy P.] , 173 A.D.3d 1692, 1694, 105 N.Y.S.3d 230 [4th Dept. 2019], lv denied 34 N.Y.3d 902, 2019 WL 5445955 [2019] [internal quotation marks omitted]; see § 384–b[7][f] ). Here, we conclude that petitioner exercised diligent efforts inasmuch as the caseworker, over the course of at least one year, sent the mother monthly letters informing her of service plan review meetings, providing her with updates on the child's condition and progress, and explaining to her that if the child remained in foster care, the mother's parental rights could be terminated. We note that in light of the distance to the prison facilities and the child's age, medical needs, and inability to speak, neither visitation nor telephone contact was feasible (see Matter of Lawrence KK. [Lawrence LL.] , 72 A.D.3d 1233, 1234, 898 N.Y.S.2d 339 [3d Dept. 2010], lv denied 14 N.Y.3d 713, 2010 WL 2301685 [2010] ).
Contrary to the mother's further contention, petitioner established that, despite its diligent efforts, the mother failed substantially and continuously or repeatedly to maintain contact with or plan appropriately for the future of the child (see Matter of Christian C.-B. [Christopher V.B.] , 148 A.D.3d 1775, 1776–1777, 50 N.Y.S.3d 766 [4th Dept. 2017], lv denied 29 N.Y.3d 917, 2017 WL 3877620 [2017] ). We conclude that "[t]he [mother's] failure ... to provide any realistic and feasible alternative to having the child[ ] remain in foster care until [the mother's] release from prison ... supports a finding of permanent neglect" ( Matter of Davianna L. [David R.] , 128 A.D.3d 1365, 1365, 8 N.Y.S.3d 520 [4th Dept. 2015], lv denied 25 N.Y.3d 914, 2015 WL 5037553 [2015] [internal quotation marks omitted] ). Furthermore, where the evidence demonstrates that the foster placement is providing for the extensive needs of a child with medical concerns and that the parent "lack[s] knowledge, insight and understanding" into those needs, there is a sound and substantial basis in the record for determining that it is in the child's best interests to be freed for adoption by the foster family ( Matter of Deime Zechariah Luke M. [Sharon Tiffany M.] , 112 A.D.3d 535, 537, 978 N.Y.S.2d 125 [1st Dept. 2013], lv denied 22 N.Y.3d 863, 2014 WL 1243479 [2014] ). Thus, "[i]n light of ‘the positive living situation’ of the child[ ] while residing with [her] foster parent[ ], ‘the absence of a more significant relationship’ between the child[ ] and the [mother], ‘and the uncertainty surrounding’ " the mother's ability to care for the child and the stability of her living situation, we further conclude that termination of mother's parental rights was warranted ( Matter of Nataylia C.B. [Christopher B.] , 150 A.D.3d 1657, 1659, 52 N.Y.S.3d 604 [4th Dept. 2017], lv denied 29 N.Y.3d 919, 2017 WL 4051008 [2017] ; see Matter of Isabella M. [Kristine N.] , 168 A.D.3d 1234, 1236, 92 N.Y.S.3d 440 [3d Dept. 2019] ).
Finally, contrary to the mother's contention that she was denied effective assistance of counsel, we conclude that " ‘[t]he record, viewed in its totality, establishes that the [mother] received meaningful representation’ " ( Matter of Kemari W. [Jessica J.] , 153 A.D.3d 1667, 1668, 61 N.Y.S.3d 436 [4th Dept. 2017], lv denied 30 N.Y.3d 909, 2018 WL 358524 [2018] ).