IN RE: ANNA MARIE G. (Anonymous) (2006)

In a proceeding pursuant to Social Services Law § 384-b to terminate parental rights on the ground of permanent neglect, the mother and father separately appeal from an order of fact-finding and disposition of the Family Court, Kings County (Freeman, J.), dated January 24, 2005, which, after fact-finding and dispositional hearings, found that they permanently neglected the subject child, terminated their parental rights, and transferred guardianship and custody of the subject child to the Commissioner of Social Services of the City of New York and the Jewish Child Care Association of New York for the purpose of adoption.

ORDERED that the order of fact-finding and disposition is modified, on the law, (1) by deleting the provision thereof finding that the father permanently neglected the subject child, and substituting therefor a provision dismissing the petition insofar as asserted against the father, and (2) by deleting the provision thereof which transferred guardianship and custody of the subject child to the Commissioner of Social Services of the City of New York and the Jewish Child Care Association of New York for the purpose of adoption;  as so modified, the order of fact-finding and disposition is affirmed, without costs or disbursements;  and it is further,

ORDERED that the matter is remitted to the Family Court, Kings County, for a new dispositional hearing in accordance herewith.

 In a proceeding to terminate parental rights based on permanent neglect, the petitioner must establish, as a threshold matter, that it exerted diligent efforts to encourage and strengthen the parental relationship (see Matter of Sheila G., 61 N.Y.2d 368, 373, 474 N.Y.S.2d 421, 462 N.E.2d 1139).   Contrary to the mother's contention, the evidence presented at the fact-finding hearing established that the petitioner made diligent efforts to assist her in maintaining contact with her child, Anna Marie, and planning for the child's future (see Social Services Law § 384-b[7][a] ) by facilitating visitation and by making affirmative, repeated, and meaningful efforts to assist her in addressing the mental health issues that were the primary obstacle preventing the return to her of Anna Marie (see Matter of Kenneth Dayshawn J., 16 A.D.3d 158, 790 N.Y.S.2d 456;  Matter of Qudra W., 297 A.D.2d 580, 747 N.Y.S.2d 172;  Matter of Yvonne Cecilea Y., 293 A.D.2d 423, 740 N.Y.S.2d 860).   Moreover, the finding of permanent neglect was supported by clear and convincing evidence that the mother failed to plan for Anna Marie's future (see Matter of Avery Curtis Foster Joe D., 306 A.D.2d 276, 761 N.Y.S.2d 672;  Matter of Diana L., 299 A.D.2d 359, 749 N.Y.S.2d 167;  Matter of Vincent Anthony C., 235 A.D.2d 283, 652 N.Y.S.2d 289;  Matter of Sonia H., 177 A.D.2d 575, 576 N.Y.S.2d 165;  Matter of Kandu Anthony Y., 166 A.D.2d 653, 561 N.Y.S.2d 79).

 However, the Family Court erred in determining that the father permanently neglected Anna Marie.   Pursuant to Social Services Law § 384-b, which permits the termination of parental rights upon a finding that a parent has “permanently neglected” a child (see Social Services Law § 384-b [4][d] ), a child is defined as permanently neglected when “for a period of either at least one year or fifteen out of the most recent twenty-two months following the date such child came into the care of an authorized agency” (Social Services Law § 384-b[7][a] ), the parent either “failed substantially and continuously or repeatedly to maintain contact with or plan for the future of the child although physically and financially able to do so” (Matter of Star Leslie W., 63 N.Y.2d 136, 142, 481 N.Y.S.2d 26, 470 N.E.2d 824;  see Matter of Gregory B., 74 N.Y.2d 77, 86, 544 N.Y.S.2d 535, 542 N.E.2d 1052;  Social Services Law § 384-b[7][a] ).   Termination of parental rights is a drastic step which can only be taken where there is compliance with the statute (see Matter of Jamie M., 63 N.Y.2d 388, 394, 482 N.Y.S.2d 461, 472 N.E.2d 311).   Here, the petitioner failed to adduce clear and convincing evidence that the father failed to plan for Anna Marie's future for at least one year, as required by the statute (see Social Services Law § 384-b[7] [a], [3][g] ).  The record contains no evidence that two of the three elements of the petitioner's service plan for the father had been in place for periods of at least a year.

Moreover, the petitioner failed to sustain its statutory burden of demonstrating by clear and convincing evidence that it exercised the requisite diligent efforts to reunite Anna Marie with her father (see Social Services Law § 384-b[7][a], [3][g];  Matter of Jamie M., supra;  Matter of Joshua R., 2 A.D.3d 528, 768 N.Y.S.2d 491;  cf. Matter of Westchester County Dept. of Soc. Servs. ex rel. Brian M., 221 A.D.2d 456, 633 N.Y.S.2d 581;  Matter of Charmaine T., 173 A.D.2d 625, 570 N.Y.S.2d 209;  Matter of Erica J., 154 A.D.2d 595, 546 N.Y.S.2d 423).   Accordingly, the petition should have been dismissed as to the father.

In light of our determination that the Family Court erred in terminating the father's parental rights and in view of information provided by the Law Guardian in her brief as to Anna Marie's current placement status and stated desire to live with her father, we remit the matter to the Family Court for a new dispositional hearing with respect to Anna Marie's best interests (see Matter of Antonette Alasha E., 8 A.D.3d 375, 777 N.Y.S.2d 757;  Matter of Eugene L., 22 A.D.3d 348, 802 N.Y.S.2d 156, lv. denied 6 N.Y.3d 715, 823 N.Y.S.2d 355, 856 N.E.2d 919).

In view of our determination, we do not reach the parties' remaining contentions.