Opinion
2012-01-31
In the Matter of WALTER D.H. (Anonymous).New York Foundling Hospital, petitioner-respondent;Zaire L. (Anonymous), appellant, et al., respondent.
Mark Brandys, New York, N.Y., for appellant. Quinlan and Fields, Hawthorne, N.Y. (Daniel Gartenstein of counsel), for petitioner-respondent.
Mark Brandys, New York, N.Y., for appellant. Quinlan and Fields, Hawthorne, N.Y. (Daniel Gartenstein of counsel), for petitioner-respondent. Lewis S. Calderon, Jamaica, N.Y., attorney for the child.DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
In a proceeding pursuant to Social Services Law § 384–b to terminate the parental rights of the mother and the father on the ground of permanent neglect, the mother appeals, as limited by her brief, from so much of an order of fact-finding and disposition of the Family Court, Queens County (Salinitro, J.), dated November 15, 2010, as, after fact-finding and dispositional hearings, determined that she permanently neglected the subject child, terminated her parental rights, and transferred the custody and guardianship of the child to the Commissioner of Social Services of the City of New York and the New York Foundling Hospital for the purpose of adoption.
ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.
To establish permanent neglect, there must be clear and convincing proof that, for a period of one year following the child's placement with an authorized agency, the parent failed to substantially and continuously maintain contact with the child or, alternatively, 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 ( see Social Services Law § 384–b[7][a]; Family Ct. Act § 622; Matter of Star Leslie W., 63 N.Y.2d 136, 481 N.Y.S.2d 26, 470 N.E.2d 824). Before a finding of permanent neglect can be made, the agency must demonstrate that it made diligent efforts to encourage and strengthen the parental relationship ( see Social Services Law § 384–b[7][f]; Matter of Jamie M., 63 N.Y.2d 388, 390, 482 N.Y.S.2d 461, 472 N.E.2d 311; Matter of Sorin P., 58 A.D.3d 743, 873 N.Y.S.2d 89).
Here, the agency established by clear and convincing evidence that it made diligent efforts to strengthen the parent-child relationship, and that despite its efforts, the mother failed to meaningfully plan for the future of the subject child ( see Matter of Nathaniel T., 67 N.Y.2d 838, 842, 501 N.Y.S.2d 647, 492 N.E.2d 775; Matter of Leavon Marvin B., 60 A.D.3d 941, 876 N.Y.S.2d 111; Matter of Laura F., 48 A.D.3d 812, 852 N.Y.S.2d 388; Matter of Sarah Jean R., 290 A.D.2d 511, 736 N.Y.S.2d 410). According deference to the Family Court's findings as to the credibility, character, and temperament of the mother and other witnesses, we find that the evidence adduced at the fact-finding hearing supports the Family Court's finding of permanent neglect ( see Matter of Marie J., 307 A.D.2d 265, 762 N.Y.S.2d 263).
At a dispositional hearing after a finding of permanent neglect, the Family Court must make its determination based on the best interests of the child ( see Family Ct. Act § 631). The mother contends that the Family Court should have suspended judgment for one year pursuant to Family Court Act § 633 to prepare her to be reunited with the child ( see Matter of Michael B., 80 N.Y.2d 299, 311, 590 N.Y.S.2d 60, 604 N.E.2d 122). Here, however, despite the mother's recent efforts to avail herself of the services offered to her, the child has bonded with the foster mother, who has consistently provided for him for most of his life, and it would not be in the child's best interests to prolong foster care ( see Matter of Angelica W. [ Dorothy W.], 80 A.D.3d 772, 915 N.Y.S.2d 609; Matter of Olivia Susan C., 2 A.D.3d 441, 767 N.Y.S.2d 798). Thus, the Family Court properly concluded that it was in the child's best interests to terminate the mother's parental rights and free him for adoption by his foster parent ( see Matter of Jonathan B. [ Linda S.], 84 A.D.3d 1078, 923 N.Y.S.2d 638).
The mother's contention that this proceeding should not have been commenced prior to the resolution of a related Family Court Act article 10 child protective proceeding is without merit ( see Matter of Raymond W., 263 A.D.2d 366, 693 N.Y.S.2d 27; Matter of Mickey B., 65 A.D.2d 603, 409 N.Y.S.2d 504).