IN RE: OLIVIA L. (2007)

Petitioner commenced these proceedings to terminate the parental rights of respondents on the ground of permanent neglect.   Following a fact-finding hearing on the petitions, Family Court found that respondents had permanently neglected their child, terminated their parental rights and transferred guardianship and custody of the child to petitioner.   Respondent mother appeals.

 We agree with the mother that petitioner failed to meet its initial burden of establishing that it made “diligent efforts to encourage and strengthen the parental relationship” (Social Services Law § 384–b [7][a];  see Matter of Joshua R., 2 A.D.3d 528, 768 N.Y.S.2d 491;  see generally Matter of Star Leslie W., 63 N.Y.2d 136, 142, 481 N.Y.S.2d 26, 470 N.E.2d 824).  “To meet the diligent efforts requirement ‘[a]n agency must always determine the particular problems facing a parent with respect to the return of his or her child and make affirmative, repeated, and meaningful efforts to assist the parent in overcoming these handicaps' ” (Matter of Austin A., 243 A.D.2d 895, 896–897, 663 N.Y.S.2d 336, quoting Matter of Sheila G., 61 N.Y.2d 368, 385, 474 N.Y.S.2d 421, 462 N.E.2d 1139).  “The agency should mold its diligent efforts to fit the individual circumstances so as to allow the parent to provide for the child's future” (id. at 897, 663 N.Y.S.2d 336 [internal quotation marks omitted];  see Matter of Jesus JJ., 232 A.D.2d 752, 753, 649 N.Y.S.2d 61, lv. denied 89 N.Y.2d 809, 655 N.Y.S.2d 889, 678 N.E.2d 502;  Matter of Charlene TT., 217 A.D.2d 274, 276–277, 634 N.Y.S.2d 807).   Based on the evidence presented by petitioner at the fact-finding hearing, we conclude that petitioner “failed to tailor its efforts to the needs of this particular parent and child” (Matter of Maria Ann P., 296 A.D.2d 574, 575, 745 N.Y.S.2d 717;  see Charlene TT., 217 A.D.2d at 276–278, 634 N.Y.S.2d 807;  Matter of Sykia Monique G., 208 A.D.2d 535, 537, 616 N.Y.S.2d 804).

 Even assuming, arguendo, that petitioner met its initial burden of establishing that it made the requisite diligent efforts, we further agree with the mother that petitioner failed to establish that she failed to plan for the child's future although physically and financially able to do so (see Social Services Law § 384–b [7][a] ).   Inasmuch as petitioner established that the mother was unable to plan for the child's future, we conclude that petitioner failed to establish that she permanently neglected the child (see Matter of Michael E., 241 A.D.2d 635, 637, 659 N.Y.S.2d 578;  see generally Matter of Richard W., 265 A.D.2d 685, 686–687, 696 N.Y.S.2d 298;  Matter of Christina H., 227 A.D.2d 898, 899, 643 N.Y.S.2d 287).   Under the circumstances of this case, a petition for termination of parental rights on the ground of mental retardation may be appropriate (see e.g. Michael E., 241 A.D.2d at 636–637, 659 N.Y.S.2d 578;  Christina H., 227 A.D.2d at 899, 643 N.Y.S.2d 287).   In view of our determination, we see no need to address the mother's remaining contentions.

It is hereby ORDERED that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs and the petition against respondent Melissa L. is dismissed.

MEMORANDUM: