Opinion
79 CAF 16–01282
02-09-2018
In the MATTER OF JAYVEON S. Onondaga County Department of Children and Family Services, Petitioner–Respondent; v. Alexandra C., Respondent, and Timothy S., Respondent–Appellant.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF COUNSEL), FOR RESPONDENT–APPELLANT. ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (MAGGIE SEIKALY OF COUNSEL), FOR PETITIONER–RESPONDENT. PETER J. DIGIORGIO, JR., ATTORNEY FOR THE CHILD, UTICA.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF COUNSEL), FOR RESPONDENT–APPELLANT.
ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (MAGGIE SEIKALY OF COUNSEL), FOR PETITIONER–RESPONDENT.
PETER J. DIGIORGIO, JR., ATTORNEY FOR THE CHILD, UTICA.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:Respondent father appeals from an order that, inter alia, terminated his parental rights pursuant to Social Services Law § 384–b on the ground of permanent neglect. We reject the father's contention that Family Court improperly admitted hearsay evidence at the fact-finding hearing when it received a written psychological report recommending that mental health treatment be part of the father's service plan. The report was not offered for the truth of the matters asserted therein (see generally Matter of Christopher II., 222 A.D.2d 900, 902, 635 N.Y.S.2d 747 [3d Dept. 1995], lv denied 87 N.Y.2d 812, 644 N.Y.S.2d 145, 666 N.E.2d 1059 [1996] ). Rather, it was offered, and was properly admitted, for the limited purpose of establishing the good-faith basis for petitioner's service plan for the father (see Matter of Michael JJ. [Gerald JJ.], 101 A.D.3d 1288, 1291, 956 N.Y.S.2d 620 [3d Dept. 2012], lv denied 20 N.Y.3d 860, 2013 WL 599736 [2013] ).
Contrary to the father's further contention, we conclude that petitioner met its burden of establishing "by clear and convincing evidence that it made diligent efforts to encourage and strengthen the relationship between the [father] and [the child] by providing ‘services and other assistance aimed at ameliorating or resolving the problems preventing [the child's] return to [the father's] care’ ..., and that the [father] failed substantially and continuously to plan for the future of the child although physically and financially able to do so ... Although the [father] participated in the services offered by petitioner, [he] 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 Social Services Law § 384–b [7 ][a] ). We reject the father's contention that the court erred in denying his request for a suspended judgment (see Matter of Makayla S. [David S.—Alecia P.], 118 A.D.3d 1312, 1312, 987 N.Y.S.2d 757 [4th Dept. 2014], lv denied 24 N.Y.3d 904, 2014 WL 4637037 [2014] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.