IN RE: KIARA F. (2024)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Respondent father appeals from an order of fact-finding and disposition adjudicating the subject child to be permanently neglected and ordering that the child be placed in the custody of an authorized agency and the maternal grandmother, who had filed a petition for custody pursuant to Family Court Act article 6 during the pendency of the permanent neglect proceeding.

The father contends that petitioner was required to change the permanency goal to adoption prior to petitioning to terminate his parental rights in order to avoid concurrent permanency goals that were inherently contradictory. Even assuming, arguendo, that this contention is preserved, we conclude that it is without merit. Under the Family Court Act, “[a]t the conclusion of each permanency hearing, the court shall ․ determine and issue its findings, and enter an order of disposition in writing: (1) directing that the placement of the child be terminated and the child returned to the parent ․; or (2) where the child is not returned to the parent ․: (i) whether the permanency goal for the child should be approved or modified and the anticipated date for achieving the goal. The permanency goal may be determined to be: (A) return to parent; (B) placement for adoption with the local social services official filing a petition for termination of parental rights; (C) referral for legal guardianship; (D) permanent placement with a fit and willing relative; or (E) placement in another planned permanent living arrangement” (§ 1089 [d]).

Here, Family Court did not impose concurrent permanency goals (cf. Matter of Dakota F. [Angela F.], 92 A.D.3d 1097, 1098-1099, 939 N.Y.S.2d 586 [3d Dept. 2012]). Rather, the goal remained return to parent. Additionally, an agency “is permitted to evaluate and plan for other potential future goals where reunification with a parent is unlikely ․, and [s]imultaneously considering adoption and working with a parent is not necessarily inappropriate” (Matter of Anastasia S. [Michael S.], 121 A.D.3d 1543, 1544, 993 N.Y.S.2d 833 [4th Dept. 2014], lv denied 24 N.Y.3d 911, 2014 WL 7180216 [2014] [internal quotation marks omitted]; see Matter of Joshua T.N. [Tommie M.], 140 A.D.3d 1763, 1763, 32 N.Y.S.3d 793 [4th Dept. 2016], lv denied 28 N.Y.3d 904, 2016 WL 6112163 [2016]; Matter of Maryann Ellen F., 154 A.D.2d 167, 170, 552 N.Y.S.2d 740 [4th Dept. 1990], appeal dismissed 76 N.Y.2d 773, 559 N.Y.S.2d 986, 559 N.E.2d 680 [1990]).

In addition, we reject the father's contention that his due process rights were violated because he was not provided with sufficient notice that petitioner sought to terminate his parental rights. That contention is belied by the record, which contains repeated instances in which the father was notified that petitioner sought to terminate his parental rights and supported the maternal grandmother's custody petition.

The father further contends that petitioner failed to establish that it exercised the requisite diligent efforts to encourage and strengthen the parent-child relationship (see Social Services Law § 384-b [7] [a]). We reject that contention. “Diligent efforts include reasonable attempts at providing counseling, scheduling regular visitation with the child[ ], providing services to the parents to overcome problems that prevent the discharge of the child[ ] into their care, and informing the parents of their child[ ]’s progress” (Matter of Briana S.-S. [Emily S.] [Appeal No. 2], 210 A.D.3d 1390, 1391, 178 N.Y.S.3d 324 [4th Dept. 2022], lv denied 39 N.Y.3d 910, 2023 WL 3011858 [2023] [internal quotation marks omitted]; see Matter of Star Leslie W., 63 N.Y.2d 136, 142, 481 N.Y.S.2d 26, 470 N.E.2d 824 [1984]). “An agency which has tried diligently to reunite a [parent] with [their] child but which is confronted by an uncooperative or indifferent parent is deemed to have fulfilled its duty” (Star Leslie W., 63 N.Y.2d at 144, 481 N.Y.S.2d 26, 470 N.E.2d 824; see Matter of Cheyenne C. [James M.] [Appeal No. 2], 185 A.D.3d 1517, 1519, 126 N.Y.S.3d 292 [4th Dept. 2020], lv denied 35 N.Y.3d 917, 2020 WL 6930203 [2020]; Matter of Nassau County Dept. of Social Servs. v. Diana T., 207 A.D.2d 399, 401, 615 N.Y.S.2d 721 [2d Dept. 1994]). “Petitioner is not required to guarantee that the parent succeed in overcoming his or her predicaments ․, and the parent must assume a measure of initiative and responsibility” (Matter of Kemari W. [Jessica J.], 153 A.D.3d 1667, 1668, 61 N.Y.S.3d 436 [4th Dept. 2017], lv denied 30 N.Y.3d 909, 2018 WL 358524 [2018] [internal quotation marks omitted]). Here, the record establishes “by clear and convincing evidence that, although petitioner made affirmative, repeated, and meaningful efforts to assist [the father], its efforts were fruitless because [the father] was utterly uncooperative” (Cheyenne C., 185 A.D.3d at 1519, 126 N.Y.S.3d 292 [internal quotation marks omitted]). Indeed, the testimony and the exhibits submitted by petitioner demonstrate that, although petitioner attempted to maintain contact with the father and to work with him toward his service plan goals, the father failed to cooperate in any meaningful manner.