Opinion
886 CAF 22-01145
12-22-2023
In the MATTER OF ZANDER W. Orleans County Department of Social Services, Petitioner-Respondent; v. Lisa M., Respondent-Appellant.
LAW OFFICE OF VERONICA REED, SCHENECTADY (VERONICA REED OF COUNSEL), FOR RESPONDENT-APPELLANT. BRIAN P. DEGNAN, BATAVIA, FOR PETITIONER-RESPONDENT. CHARLES PLOVANICH, ROCHESTER, ATTORNEY FOR THE CHILD.
LAW OFFICE OF VERONICA REED, SCHENECTADY (VERONICA REED OF COUNSEL), FOR RESPONDENT-APPELLANT.
BRIAN P. DEGNAN, BATAVIA, FOR PETITIONER-RESPONDENT.
CHARLES PLOVANICH, ROCHESTER, ATTORNEY FOR THE CHILD.
PRESENT: LINDLEY, J.P., CURRAN, MONTOUR, OGDEN, AND NOWAK, 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 that, inter alia, terminated her parental rights with respect to the subject child on the ground of permanent neglect and transferred guardianship and custody of the child to petitioner. We affirm.
We reject the mother's contention that petitioner failed to establish that it exercised diligent efforts to encourage and strengthen the parent-child relationship, as required by Social Services Law § 384-b (7) (a). "Diligent efforts include reasonable attempts at providing counseling, scheduling regular visitation with the child, providing services to the parent[ ] to overcome problems that prevent the discharge of the child into their care, and informing the parent[ ] of [the] child's progress" ( Matter of Jessica Lynn W. , 244 A.D.2d 900, 900-901, 665 N.Y.S.2d 205 [4th Dept. 1997] ; see § 384-b [7] [f] ). Petitioner is not required, however, to "guarantee that the parent succeed in overcoming his or her predicaments" ( Matter of Sheila G. , 61 N.Y.2d 368, 385, 474 N.Y.S.2d 421, 462 N.E.2d 1139 [1984] ; see Matter of Jamie M. , 63 N.Y.2d 388, 393, 482 N.Y.S.2d 461, 472 N.E.2d 311 [1984] ). Rather, the parent must "assume a measure of initiative and responsibility" ( Jamie M. , 63 N.Y.2d at 393, 482 N.Y.S.2d 461, 472 N.E.2d 311 ). Here, petitioner established by clear and convincing evidence (see § 384-b [3] [g] [i] ) that it exercised diligent efforts to encourage and strengthen the mother's relationship with the child (see Matter of Janette G. [Julie G.] , 181 A.D.3d 1308, 1308-1309, 119 N.Y.S.3d 796 [4th Dept. 2020], lv denied 35 N.Y.3d 907, 2020 WL 3422455 [2020] ). Petitioner provided appropriate referrals to the mother for mental health counseling and parenting classes. In addition, petitioner scheduled regular visitation between the mother and the child, during which petitioner provided several different therapists to give medically necessary services to the child and, at the same time, educate the mother as to the child's needs (see Matter of Briana S.-S. [Emily S.] [Appeal No. 2] , 210 A.D.3d 1390, 1392, 178 N.Y.S.3d 324 [4th Dept. 2022], lv denied 39 N.Y.3d 910, 2023 WL 3011858, 2023 WL 3011918 [2023]; Matter of Dagan B. [Calla B.] [Appeal No. 3] , 192 A.D.3d 1458, 1459, 143 N.Y.S.3d 758 [4th Dept. 2021], appeal dismissed 37 N.Y.3d 977, 151 N.Y.S.3d 662, 173 N.E.3d 785 [2021] ; Matter of Asianna NN. [Kansinya OO.] , 119 A.D.3d 1243, 1245, 990 N.Y.S.2d 350 [3d Dept. 2014], lv denied 24 N.Y.3d 907, 2014 WL 5394031 [2014] ).
Contrary to the further contention of the mother, we conclude that, despite petitioner's diligent efforts, the mother failed to plan for the child's future. " ‘[T]o plan for the future of the child’ shall mean to take such steps as may be necessary to provide an adequate, stable home and parental care for the child" ( Social Services Law § 384-b [7] [c] ). Here, "there is no evidence that [the mother] had a realistic plan to provide an adequate and stable home for the child[ ]" ( Matter of Giohna R. [John R.] , 179 A.D.3d 1508, 1509, 119 N.Y.S.3d 336 [4th Dept. 2020], lv dismissed in part & denied in part 35 N.Y.3d 1003, 125 N.Y.S.3d 680, 149 N.E.3d 441 [2020] [internal quotation marks omitted]).
Finally, the mother failed to preserve for our review her contention that Family Court should have granted a suspended judgment (see Matter of John D., Jr. [John D.] , 199 A.D.3d 1412, 1414, 154 N.Y.S.3d 590 [4th Dept. 2021], lv denied 38 N.Y.3d 903, 2022 WL 1491244 [2022] ; Matter of Atreyu G. [Jana M.] , 91 A.D.3d 1342, 1343, 938 N.Y.S.2d 686 [4th Dept. 2012], lv denied 19 N.Y.3d 801, 2012 WL 1502691 [2012] ). In any event, a suspended judgment was not warranted under the circumstances "inasmuch as any progress made by the [mother] prior to the dispositional determination was insufficient to warrant any further prolongation of the [child's] unsettled familial status" ( Matter of Cyle F. [Alexander F.] , 155 A.D.3d 1626, 1628, 64 N.Y.S.3d 842 [4th Dept. 2017], lv denied 30 N.Y.3d 911, 71 N.Y.S.3d 5, 94 N.E.3d 487 [2018] [internal quotation marks omitted]).