Opinion
1200 CAF 18-02167
02-11-2021
In the MATTER OF BIANCA F. Steuben County Department of Social Services, Petitioner-Respondent; v. Terrald F., Respondent-Appellant. (Appeal No. 1.)
DAVISON LAW OFFICE, PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR RESPONDENT-APPELLANT. DONALD S. THOMSON, BATH, FOR PETITIONER-RESPONDENT. THOMAS V. CASE, HORNELL, ATTORNEY FOR THE CHILD.
DAVISON LAW OFFICE, PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR RESPONDENT-APPELLANT.
DONALD S. THOMSON, BATH, FOR PETITIONER-RESPONDENT.
THOMAS V. CASE, HORNELL, ATTORNEY FOR THE CHILD.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In appeal Nos. 1 and 2, respondent father appeals from orders terminating his parental rights to the subject children pursuant to Social Services Law § 384-b on the ground of permanent neglect. We now affirm in both appeals.
Contrary to the contentions of petitioner and the Attorney for the Child in both appeals, the orders were not entered on the father's default. An order is entered on default where the parent fails to appear and the attorney, although present, elects not to participate in the parent's absence (see e.g. Matter of Heavenly A. [Michael P.] , 173 A.D.3d 1621, 1622, 105 N.Y.S.3d 227 [4th Dept. 2019] ; Matter of Makia S. [Catherine S.] , 134 A.D.3d 1445, 1445, 21 N.Y.S.3d 653 [4th Dept. 2015] ). Here, however, the father's attorney participated by cross-examining one witness, repeatedly indicating his lack of objection to various exhibits offered by petitioner, and informing Family Court that he had no witnesses after petitioner rested. Where, as here, an attorney participates in the proceedings, the resulting order cannot be said to have been entered on default (see e.g. Matter of Savanna G. [Dayelle M.] , 118 A.D.3d 1482, 1482, 988 N.Y.S.2d 812 [4th Dept. 2014] ; Matter of Danielle M. , 26 A.D.3d 748, 748, 808 N.Y.S.2d 873 [4th Dept. 2006], lv denied 7 N.Y.3d 703, 819 N.Y.S.2d 869, 853 N.E.2d 240 [2006] ).
With respect to the merits, we conclude in both appeals 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 Social Services Law § 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, 142-143, 481 N.Y.S.2d 26, 470 N.E.2d 824 [1984] ).
Contrary to the father's contention in both appeals, the evidence at the hearing establishes that, despite those diligent efforts, the father failed to plan for the future of the children, although physically and financially able to do so. In particular, he failed to correct the conditions that led to their removal inasmuch as he failed, inter alia, to find "suitable and stable housing" ( Matter of Sophia M.G.K. [Tracy G.K.] , 132 A.D.3d 1377, 1378, 18 N.Y.S.3d 491 [4th Dept. 2015] ; see Matter of Zachary H. [Jessica H.] , 129 A.D.3d 1501, 1501, 10 N.Y.S.3d 779 [4th Dept. 2015], lv denied 25 N.Y.3d 915, 2015 WL 5037274 [2015] ; see generally Matter of Rachael N. [Christine N.] , 70 A.D.3d 1374, 1374, 894 N.Y.S.2d 265 [4th Dept. 2010], lv denied 15 N.Y.3d 708, 2010 WL 3583146 [2010] ).