In the Matter of JAMES X., a Child Alleged to be Permanently Neglected. CORTLAND COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; JOHN X., Appellant. (And Another Related Proceeding.)
Supreme Court, Appellate Division, Third Department, New York
February 22, 2007
37 A.D.3d 1003 | 830 N.Y.S.2d 608
In addition to James (born 1999), respondent is the father of four other children by three women. James lived with his mother and half brother Kodie in Chenango County until the children were removed from the mother‘s care in February 2000. The two children were subsequently returned to the mother‘s care in March 2001, after which they briefly lived with the mother and respondent in Cortland County until—according to the mother—he kicked them out. In February 2004, the children were once again removed from the mother by petitioner and placed together in a foster home and, in March 2006, the mother surrendered her parental rights.
After James was placed in foster care, petitioner began to work with respondent to develop a case plan to prepare him to be a resource for his son. The plan was necessitated, in part, by respondent‘s history of sexual misconduct. In 1991, respondent pleaded guilty to sexual misconduct with his nine-year-old niece, for which he was sentenced to three years of probation and directed to complete sex offender counseling; respondent was violated for failure to participate in the counseling program, and did not complete it. In 1994, Family Court determined that he had sexually abused his four-year-old son, Shaun; he was again required to complete sex offender treatment, and an order of protection was entered and these orders were upheld by this Court (Matter of Shaun X., 228 AD2d 730 [1996]).
Against this backdrop, part of petitioner‘s plan for respondent was that he attend and complete sex offender treatment as well as parenting classes. Petitioner also arranged weekly supervised visitation for respondent and James, which respondent exercised, and he completed a Parent Aggression Reduction Group and a Nonviolent Alternatives Program. During this time, he was repeatedly informed that attendance in and completion of sex offender treatment was an essential part of the plan. In response, on many occasions respondent denied ever committing sexual abuse and, alternatively, stated to
In March 2006, respondent and his mother petitioned for joint custody of James, and petitioner commenced a permanent neglect proceeding against respondent. Family Court, among other things, dismissed the custody petition as to respondent‘s mother because she failed to allege extraordinary circumstances. In July 2006, petitioner removed James from his foster home (and from his half brother) and placed him with another family, his current foster parent.
After a full hearing was completed in August 2006, Family Court issued an order finding that respondent had permanently neglected James. At the dispositional hearing, another of respondent‘s caseworkers testified that as recently as March 2006, she had urged respondent to engage in sex offender treatment, but he again denied his past abuse. Subsequently, the court issued a decision terminating respondent‘s parental rights and dismissing his custody petition. Respondent now appeals from the finding of permanent neglect and the termination of his parental rights.
Family Court justifiably determined that respondent permanently neglected James. Pursuant to
Here, the foregoing shows that petitioner worked with respondent to create a plan to prepare him to be a resource for James and, while respondent completed some programs, he repeatedly refused to participate in sex offender treatment, proffering myriad invalid excuses, during which petitioner faithfully encouraged his participation and made clear that attendance was necessary. As such, according great deference to Family Court‘s factual determinations (see Matter of Joshua BB., 27 AD3d 867, 869 [2006]; Matter of Elijah NN., supra at 730), we affirm its finding that petitioner demonstrated by clear and convincing evidence that it exercised diligent efforts to assist respondent.
Also without merit is respondent‘s contention that Family Court erred in finding that he failed to demonstrate that he planned for the future of his child. Once an agency has demonstrated that it has made the requisite diligent efforts, the parent must show that his or her problems have been addressed and that there is a meaningful plan for the child‘s future (see Matter of Kaitlyn R., supra at 914). As used in
Next, respondent failed to request a suspended judgment at the conclusion of the dispositional hearing and, thus, his claim related thereto has not been preserved for review (see Matter of Bryce R.W., 32 AD3d 1312, 1313 [2006]). In any event, the disposition following a hearing on permanent neglect shall be made solely on the basis of the best interests of the child and there is no presumption that favors returning a child to a parent (see
Finally, it is axiomatic that when parental rights are terminated pursuant to an adversarial proceeding that results in a finding of permanent neglect, the court lacks authority to permit visitation to a respondent (see Matter of Labron P., 23 AD3d 943, 945 [2005]; Matter of Jessi W., 20 AD3d 620, 621 [2005]).
Mercure, J.P., Crew III, Mugglin and Rose, JJ., concur.
Ordered that the orders are affirmed, without costs.