In re Arianna I.
In the Matter of ARIANNA I., a Child Alleged to be Abandoned. CORTLAND COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; ROGER I., Appellant. LISA K. MILLER, as Attorney for the Children, Appellant. (Proceeding No. 1.) In the Matter of JESSALYN J., a Child Alleged to be Permanently Neglected. CORTLAND COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; CHARLES K., Appellant. LISA K. MILLER, as Attorney for the Children, Appellant. (Proceeding No. 2.) In the Matter of JESSALYN J., a Child Alleged to be Permanently Neglected. CORTLAND COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; JESSICA J., Appellant. LISA K. MILLER, as Attorney for the Children, Appellant. (Proceeding No. 3.) In the Matter of ARIANNA I., a Child Alleged to be Permanently Neglected. CORTLAND COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; JESSICA J., Appellant. LISA K. MILLER, as Attorney for the Children, Appellant. (Proceeding No. 4.) [955 NYS2d 413]
Kavanagh, J. Appeals from five orders of the Family Court of Cortland County (Campbell, J.), entered May 9, 2011, May 10, 2011, July 25, 2011 and July 29, 2011, which granted petitioner‘s applications, in four proceedings pursuant
Respondent Jessica J. (hereinafter the mother) is the mother of two girls, Arianna I. (born in 2004) and Jessalyn J. (born in 2006). Respondents Charles K. and Roger I. are the fathers of Jessalyn and Arianna, respectively. In October 2009, petitioner removed both children from the mother‘s custody, because, in addition to engaging in conduct indicating that she had significant mental health problems, she was in an abusive relationship and had previously assaulted Jessalyn. At the time the children were removed from her custody, Charles was incarcerated and Roger had only recently been released from prison. After a temporary order of protection was entered barring the mother from having any contact with the children, Family Court adjudicated both girls to be neglected and, upon consent, entered a dispositional order requiring that they remain in petitioner‘s custody. The order also required that the mother undergo mental health counseling, avoid violent conduct, submit to drug and alcohol evaluations, participate in certain programming and make suitable arrangements so that the children could safely reside with her.
In November 2010, petitions were filed seeking to terminate respondents’ parental rights. Specifically, the petitions alleged that the mother had permanently neglected both children, Charles had permanently neglected Jessalyn, and Roger had abandoned Arianna. Following fact-finding hearings, Family Court found that Jessalyn had been permanently neglected by her parents, and Arianna, in addition to being abandoned by Roger, had been permanently neglected by the mother. A dispositional hearing was held, after which the court terminated respondents’ parental rights and freed the children for adoption. Respondents, as well as the attorney for the children, now appeal.1
Initially, we note that petitioner established by clear and convincing evidence that it made diligent efforts to promote a constructive relationship between the mother and the two children (see
While the mother has undoubtably permanently neglected the children, we do not agree, on this record, that termination of her parental rights at this time is in the children‘s best interests (see
As for the abandonment of Arianna by her father, petitioner was required to show by clear and convincing evidence that, during the period of at least six months prior to the petition being filed, Roger “evince[d] an intent to forego his . . . parental rights and obligations as manifested by his . . . failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency” (
The caseworker provides a very different description of her contact with Roger. She testified that Roger was provided with copies of relevant correspondence regarding the proceeding, including reports detailing the service plan in place for the child, as well as letters notifying him of her foster care placement and his child support obligations. She acknowledged informing Roger that he had to go to Family Court to gain access to Arianna and admits to harboring reservations about Roger having any contact with the child because he was living with a woman who had a Child Protective Services history and never had custody of the child since he had only recently been released from prison. The caseworker also testified that her only contact with Roger was in November 2009 and that, to her
knowledge, he
Charles claims—and the attorney for the children agrees—that petitioner failed to make diligent efforts to foster a constructive relationship between him and Jessalyn. In circumstances involving incarcerated parents, diligent efforts may include “apprising the incarcerated parent of the child‘s well-being, developing an appropriate service plan, investigating possible placement of the child with relatives suggested by the parent, responding to the parent‘s inquiries and facilitating telephone contact between parent and child” (Matter of James J. [James K.], 97 AD3d at 937 [internal quotation marks and citations omitted]; see Matter of Marquise JJ. [Jamie KK.], 91 AD3d 1137, 1138-1139 [2012], lv denied 19 NY3d 801 [2012]; Matter of Hailey ZZ. [Ricky ZZ.], 85 AD3d 1265, 1266 [2011], affd 19 NY3d 422 [2012]). Here, a caseworker testified to receiving a letter from Charles in November 2009, after Jessalyn had been placed in foster care, indicating that the mother had neglected the child and stating that his daughter would be better off being allowed to live with a family member as opposed to being placed in foster care. Petitioner‘s caseworker acknowledged knowing that Charles‘s brother had sought custody of Jessalyn in Family Court and admits not investigating whether allowing the child to reside with this individual would have been preferable to her being placed in foster care. Moreover, petitioner‘s caseworker testified that Charles requested visitation with the child and stated that he would seek custody upon his release from prison.3 We also note that despite Charles‘s efforts to secure visitation with Jessalyn, petitioner‘s caseworker did not attempt to arrange any contact between him and the child, nor did she meet with Charles.
While Charles’ incarceration undoubtedly posed significant problems for petitioner in promoting a constructive relationship with his daughter, that circumstance alone does not relieve the agency of its statutory obligations in that regard (see Matter of James J. [James K.],
97 AD3d at 936-937). Here, there is simply no evidence indicating that petitioner‘s caseworker made more then a cursory attempt to promote a constructive relationship between Charles and his daughter and, for that reason, the petition against him must be dismissed (see Matter of Shi‘ann FF., 47 AD3d 1133, 1135 [2008]; Matter of Jawan Y., 274 AD2d 696, 697-698 [2000]; compare Matter of James J. [James K.], 97 AD3d at 937).
Rose, J.P., Lahtinen, Spain and McCarthy, JJ., concur. Ordered that the order entered May 9, 2011 finding that respondent Roger I. abandoned Arianna I. is affirmed, without costs. Ordered that the appeals from the orders entered May 10, 2011 are dismissed, without costs. Ordered that the order entered July 25, 2011 finding that respondent Charles K. permanently neglected Jessalyn J. and terminated his parental rights is reversed, on the law, without costs, and petition dismissed. Ordered that the order entered July 29, 2011 terminating the parental rights of respondent Jessica J. is modified, on the law and facts, without costs, by reversing so much thereof as terminated her parental rights; matter remitted to the Family Court of Cortland County for further proceedings not inconsistent with this Court‘s decision; and, as so modified, affirmed.