IN RE: RIYANNA N.F. (Anonymous)

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: RIYANNA N.F. (Anonymous), Also Known as Riyanna F. (Anonymous). Forestdale, Inc., Petitioner-Respondent; Crystal M.S. (Anonymous), Appellant, et al., Respondent; Angelina F. (Anonymous), Intervenor-Respondent.

2017–07317

Decided: March 20, 2019

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, JJ. Wilmer Cutler Pickering Hale and Dorr LLP, New York, N.Y. (Stephanie Simon, Alan Schoenfeld, and Anne Rosenblum of counsel), for appellant. Rosin Steinhagen Mendel, New York, N.Y. (Douglas H. Reiniger of counsel), for petitioner-respondent. Jacqueline Cabrera, Jamaica, NY, for intervenor-respondent. Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Marcia Egger of counsel), attorney for the child. Davis Polk & Wardwell LLP, New York, N.Y. (David J. Robles, Joshua S. Sills, and Walter H. Hawes of counsel), for amici curiae My Sisters' Place, Sanctuary for Families, World Without Exploitation, Day One, Her Justice, New York State Coalition Against Domestic Violence, New York State Anti–Trafficking Coalition, Polaris, Coalition Against Trafficking in Women, My Life, My Choice of Justice Resource Institute, ECPAT–USA, GEMS, National Network to End Domestic Violence, LIFT International, Covenant House, and New York Legal Assistance Group.

DECISION & ORDER

ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.

The subject child was born in November 2010 and tested positive for heroin upon birth.  As a result, the child was removed from the mother and placed in foster care several days later.  Almost six year later, in April 2016, Forestdale, Inc. (hereinafter the agency), commenced this proceeding to terminate the parental rights of the mother and the father.  After fact-finding and dispositional hearings, the Family Court issued an order of fact-finding and disposition, inter alia, finding that the mother permanently neglected the child, terminating the mother's parental rights, and transferring guardianship and custody of the child to the agency and the Commissioner of the Administration for Children's Services of the City of New York for the purpose of adoption.  The mother appeals.

In order for the Family Court to find that the mother permanently neglected the child, the agency was required to show, by clear and convincing evidence, that, for a period of one year following the child's placement with the agency, the mother failed to maintain contact with the child or, alternatively, failed to plan for the future of the child, although physically and financially able to do so, notwithstanding the agency's diligent efforts to encourage and strengthen the parent-child relationship (see Social Services Law § 384–b[4], [7][a] ).  A threshold inquiry in a proceeding to terminate parental rights is whether an agency demonstrated that it made diligent efforts to encourage and strengthen the parental relationship (see Social Services Law § 384–b[7][a];  Matter of Hailey ZZ. [Ricky ZZ.], 19 N.Y.3d 422, 429, 948 N.Y.S.2d 846, 972 N.E.2d 87;  Matter of Sheila G., 61 N.Y.2d 368, 373, 474 N.Y.S.2d 421, 462 N.E.2d 1139).  However, here, because the mother failed to keep the agency apprised of her whereabouts for a period of at least six months, the agency was not required to prove that it made diligent efforts (see Social Services Law § 384–b[7][e][i];  Matter of Jackie Ann W. [Leticia Ann W.], 154 A.D.3d 459, 461, 61 N.Y.S.3d 534;  Matter of Leavon Marvin B., 60 A.D.3d 941, 942, 876 N.Y.S.2d 111).  In any event, the agency established by clear and convincing evidence that it made diligent efforts to encourage and strengthen the mother's relationship with the child.  These efforts included providing the mother with referrals to drug treatment programs, parenting classes, and counseling, and encouraging her to visit with the child (see Matter of George R. [Samatha M.], 162 A.D.3d 1041, 1042, 80 N.Y.S.3d 136;  Matter of Lierre J.M. [Melissa L.D.], 150 A.D.3d 1009, 1010, 54 N.Y.S.3d 130).

The agency demonstrated that the mother failed to visit the child or contact the agency from December 2010 to August 2012.  Thus, the mother's failure to maintain contact with the child during that period was sufficient to support a finding of permanent neglect (see Matter of George R. [Samatha M.], 162 A.D.3d at 1043, 80 N.Y.S.3d 136;  Matter of Lierre J.M. [Melissa L.D.], 150 A.D.3d at 1010, 54 N.Y.S.3d 130).

We agree with the Family Court's determination that it was in the child's best interests to terminate the mother's parental rights and to free the child for adoption (see Family Ct Act § 631;  Matter of George R. [Samatha M.], 162 A.D.3d at 1043, 80 N.Y.S.3d 136;  Matter of Nay'amya W.R. [Kiara D.], 135 A.D.3d 770, 771, 24 N.Y.S.3d 120).

DILLON, J.P., LEVENTHAL, HINDS–RADIX and DUFFY, JJ., concur.