Opinion
07-03-2024
In the MATTER OF ALBINA H. and Isaiah H. Onondaga County Department of Children and Family Services, Petitioner-Respondent; v. Xenia H., Respondent, and John H., Respondent-Appellant.
Appeal from an order of the Family Court, Onondaga County (Christina F. DeJoseph, J.), entered June 21, 2023, in a proceeding pursuant to Social Services Law § 384-b. The order, insofar as appealed from, terminated respondent John H.’s parental rights with respect to the subject children.
PRESENT: WHALEN, P.J., BANNISTER, MONTOUR, OGDEN, AND DELCONTE, JJ.
Motion for reargument be and the same hereby is granted and, upon reargument, the order entered March 15, 2024 (225 A.D.3d 1171, 205 N.Y.S.3d 624 [4th Dept. 2024]) is vacated and the following memorandum and order is substituted therefor:
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 father appeals from an order that, inter alia, terminated his parental rights with respect to the subject children. Contrary to the father’s contention, we conclude that petitioner met its burden of establishing by clear and convincing evidence that it made the requisite diligent efforts to encourage and strengthen the father’s relationship with the children (see § 384-b [7] [a]; 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 generally Matter of Star Leslie W., 63 N.Y.2d 136, 142, 481 N.Y.S.2d 26, 470 N.E.2d 824 [1984]).
[1–3] We reject the father’s further contention that petitioner failed to establish, by clear and convincing evidence, that he permanently neglected the children. Permanent neglect "may be found only after it is established that the parent has failed substantially and continuously or repeatedly to maintain contact with or plan for the future of the child[ren] although physically and financially able to do so" (Star Leslie W, 6.3 N.Y.2d at 142, 481 N.Y.S.2d 26, 470 N.E.2d 824; see Social Services Law § 384-b [7] [a]). Here, the father’s refusal to cooperate with petitioner and its service plan "demonstrated his unwillingness to plan for the future of his children" (Matter of Cheyenne C. [James M.] [appeal No. 2], 185 A.D.3d 1517, 1520, 126 N.Y.S.3d 292 [4th Dept. 2020], lv denied 35 N.Y.3d 917, 2020 WL 6930203 [2020]). Although the father eventually completed the services offered by petitioner, he failed to "progress meaningfully" to overcome the issues which led to the children’s removal, which continued to prevent the children’s safe return (Matter of Aric D.B. [Carrie B.], 221 A.D.3d 1502, 1503, 200 N.Y.S.3d 626 [4th Dept. 2023]). " ‘[A] parent is required to not only attend … classes, but to benefit from the services offered and utilize the tools or lessons learned in those classes in order to successfully plan for the child[ren's] future’ " (Matter of Abraham C., 55 A.D.3d 1442, 1444, 865 N.Y.S.2d 820 [4th Dept. 2008], lv denied 12 N.Y.3d 701, 876 N.Y.S.2d 348, 904 N.E.2d 503 [2009]).
[4] Finally, the father failed to preserve for our review his contention that Family Court abused its discretion in failing to issue a suspended judgment (see Matter of Joshua T.N. [Tommie M.], 140 A.D.3d 1763, 1764, 32 N.Y.S.3d 793 [4th Dept. 2016], lv denied 28 N.Y.3d 904, 2016 WL 6112163 [2016]). In any event, we reject the father’s contention. The court at the dispositional hearing is concerned only with the best interests of the children (see Family Ct Act § 631; Star Leslie W., 63 N.Y.2d at 147, 481 N.Y.S.2d 26, 470 N.E.2d 824), and its determination is entitled to great deference (see Matter of Nathaniel T., 67 N.Y.2d 838, 842, 501 N.Y.S.2d 647, 492 N.E.2d 775 [1986]).