When a foster care agency brings a proceeding to terminate parental rights on the ground of permanent neglect, it must, as a threshold matter, prove by clear and convincing evidence that it has fulfilled its statutory duty to exercise diligent efforts to encourage and strengthen the parent-child relationship.

Those efforts must include counseling, making suitable arrangements for parental access, providing assistance to the parents to resolve the problems preventing the child’s discharge, and advising the parents of the child’s progress and development.

Once the petitioner establishes that it made diligent efforts to strengthen the parental relationship, it bears the burden of proving that, during the relevant period of time, the parent failed to maintain contact with the child or plan for the child’s future, although physically and financially able to do so.

The planning requirement contemplates that the parent shall take such steps as are necessary to provide a home that is adequate and stable, under the financial circumstances existing, within a reasonable period of time. Good faith alone is not enough, the plan must be realistic and feasible.

In providing appropriate services to a parent, an agency need not guarantee that the parent succeeds in overcoming his or her predicaments. Instead, parents must themselves assume a measure of initiative and responsibility ; they have a duty to plan for the future of their child. Thus, a parent who has only partially complied with his or her service plan and who has not gained insight into the issues that caused the removal of the child has not planned for the child’s future.

Here, the agency met its burden of establishing that the mother had permanently neglected the subject children. As a threshold matter, the agency established that it had made diligent efforts to encourage and strengthen the parent-child relationship. The agency demonstrated that it had contacted the mental health program that the mother stated she found and attended on her own, provided her with referrals for mental health treatment at other programs, and explained to her that mental health treatment was part of her service plan.

The agency had regularly discussed the possibility of parental access with the older child, supervised the mother’s parental access with the younger child, and provided the mother with constructive feedback when she made negative comments about the older child to the younger child. The agency made weekly attempts to visit the mother’s home and informed the mother of safety issues that were observed during home visits. Further, the agency asked the mother for documentation of her income and provided her with employment referrals.

Contrary to the mother’s contentions, the evidence demonstrated that the agency made referrals in a timely manner and that the agency facilitated and supported parental access in a manner that was suitable under the circumstances of this case. Moreover, the agency established that the mother had failed to plan for the children’s futures, as she only partially complied with her service plan and failed to gain insight into the issues that led to the children’s removal.

The evidence at the fact-finding hearing demonstrated, inter alia, that the mother had not completed mental health treatment and that she continued to blame one of the children for the removal of the children from the mother’s custody. Accordingly, the Family Court correctly found that the mother permanently neglected the children.

After a dispositional hearing on a petition to terminate parental rights, a court may dismiss the petition, terminate parental rights and commit guardianship to the agency, or suspend judgment for a period of up to one year. At the dispositional stage of a proceeding to terminate parental rights, the court focuses solely on the best interests of the child.

The factors to be considered in making the determination include the parent or caretaker’s capacity to properly supervise the child, based on current information and the potential threat of future abuse and neglect. At disposition, there is no presumption that those interests will be served best by a return to the biological parent. A suspended judgment is permitted only where the court determines that such disposition is in the child’s best interests.

To warrant a suspended judgment, a parent must demonstrate progress in overcoming their problems. Mere attempts are not sufficient. Here, the Family Court correctly determined that it was in the best interests of the younger child to terminate the mother’s parental rights and transfer guardianship and custody of that child for the purpose of adoption.

At the time of the dispositional hearing, the mother had not had contact with the younger child for more than three years, the child did not want to return to the mother’s care or to have contact with the mother, and the child was in a stable, pre-adoptive foster home.

Moreover, a suspended judgment was not warranted, as the mother had not demonstrated progress in overcoming the issues that led to the removal of that child. Accordingly, the Family Court properly determined that it was in the best interests of the younger child to terminate the mother’s parental rights and transfer guardianship and custody of that child for the purpose of adoption.

Matter of Alonso S.C.O., – NYS3d – , 2022 WL 17824602 (2nd Dep’t. 2022) ;

nearly identical case issued on same day by 2nd Dep’t. :

Matter of Sarai U., – NYS3d –, 2022 WL 17824588 (2nd Dep’t. 2022)

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