IN RE: TYSHAWN P. (2024)

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 father appeals from an order that, inter alia, terminated his parental rights with respect to the subject child on the ground of permanent neglect. We affirm.

Initially, we conclude that the father's contention that the petition against him must be dismissed on the ground that it was filed prematurely is unpreserved for our review. The father failed to move pursuant to CPLR 4401 for judgment as a matter of law on that ground at the close of evidence in the permanent neglect hearing held with respect to the petition against him (see Matter of Zahrada S.M.R. [Wanda C.R.], 140 A.D.3d 969, 969-970, 34 N.Y.S.3d 111 [2d Dept. 2016]; see generally Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept. 1994]). The father could not preserve his contention in that regard merely by joining the mother's motion to dismiss the petition in the separate permanent neglect hearing held with respect to a petition against the mother.

We also reject the father's contention that petitioner failed to establish that it exercised diligent efforts to encourage and strengthen the parent-child relationship while the father was incarcerated, as required by Social Services Law § 384-b (7) (a) (see Matter of Hailey ZZ. [Ricky ZZ.], 19 N.Y.3d 422, 429, 948 N.Y.S.2d 846, 972 N.E.2d 87 [2012]; Matter of Sheila G., 61 N.Y.2d 368, 373, 380-381, 474 N.Y.S.2d 421, 462 N.E.2d 1139 [1984]). Where, as here, a parent is incarcerated during the relevant period of time, petitioner's duty to engage in diligent efforts to strengthen the parent-child relationship “may be satisfied by informing the parent of the child[’s] well-being and progress, responding to the parent's inquiries, investigating relatives suggested by the parent as placement resources, and facilitating communication between the child[ ] and the parent” (Matter of Jarrett P. [Jeremy P.], 173 A.D.3d 1692, 1694, 105 N.Y.S.3d 230 [4th Dept. 2019], lv denied 34 N.Y.3d 902, 2019 WL 5445955 [2019] [internal quotation marks omitted]; see § 384-b [7] [f]). Here, we conclude that petitioner exercised diligent efforts inasmuch as its caseworker facilitated monthly in-person visits between the father and the child, repeatedly provided him with updates about the child, provided him with the opportunity to participate in service provider reviews, and investigated the relatives suggested by the father as potential placement resources.

We also conclude that, contrary to the father's contention, petitioner established that, despite its diligent efforts, the father failed substantially and continuously or repeatedly to plan appropriately for the future of the child (see Matter of Christian C.-B. [Christopher V.B.], 148 A.D.3d 1775, 1776-1777, 50 N.Y.S.3d 766 [4th Dept. 2017], lv denied 29 N.Y.3d 917, 2017 WL 3877620 [2017]). The record shows that the father's “failure ․ to provide any realistic and feasible alternative to having the child[ ] remain in foster care until [his] release from prison ․ supports a finding of permanent neglect” (Matter of Davianna L. [David R.], 128 A.D.3d 1365, 1365, 8 N.Y.S.3d 520 [4th Dept. 2015], lv denied 25 N.Y.3d 914, 2015 WL 5037553 [2015] [internal quotation marks omitted]; see Matter of Nykira H. [Chellsie B.-M.], 181 A.D.3d 1163, 1164, 121 N.Y.S.3d 453 [4th Dept. 2020]).

Finally, we conclude that the evidence supports Family Court's determination that termination of the father's parental rights is in the best interests of the child (see Matter of Alex C., Jr. [Alex C., Sr.], 114 A.D.3d 1149, 1150, 980 N.Y.S.2d 187 [4th Dept. 2014], lv denied 23 N.Y.3d 901, 2014 WL 1704499 [2014]). Among other things, the steps taken by the father to address the issues that led to the child's removal were “not sufficient to warrant any further prolongation of the child's unsettled familial status” (Matter of Alexander M. [Michael A.M.], 106 A.D.3d 1524, 1525, 964 N.Y.S.2d 445 [4th Dept. 2013] [internal quotation marks omitted]; see Matter of Zackery S. [Christa P.], 224 A.D.3d 1336, 1337, 204 N.Y.S.3d 845 [4th Dept. 2024], lv denied 41 N.Y.3d 909, 2024 WL 2966096 [2024]).