Matter of Antonio Ee. v. Schoharie County Department of Social Services

• Decision Date: 01 March 2007
• Docket Number: 500420.,500364.,500023.
• Citation: 38 A.D.3d 944,831 N.Y.S.2d 270,2007 NY Slip Op 01639
• Parties: In the Matter of ANTONIO EE., Appellant, v. SCHOHARIE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent. (Proceeding No. 1.) In the Matter of KILA DD. and Others, Children Alleged to be Permanently Neglected. SCHOHARIE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; ANTONIO EE., Appellant. (Proceeding No. 2.) In the Matter of ANTONIO EE., Appellant, v. SCHOHARIE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent. (Proceeding No. 3.)
• Court: New York Supreme Court — Appellate Division

38 A.D.3d 944

831 N.Y.S.2d 270

2007 NY Slip Op 01639

In the Matter of ANTONIO EE., Appellant, v. SCHOHARIE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent. (Proceeding No. 1.)

In the Matter of KILA DD. and Others, Children Alleged to be Permanently Neglected.

SCHOHARIE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent;

ANTONIO EE., Appellant. (Proceeding No. 2.)

In the Matter of ANTONIO EE., Appellant, v. SCHOHARIE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent. (Proceeding No. 3.)

500023.

500364.

500420.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided March 1, 2007.

Appeals (1) from an order of the Family Court of Schoharie County (Hummel, J.), entered January 24, 2006, which dismissed petitioner's application, in proceeding No. 1 pursuant to Family Ct Act article 10, to modify a prior order of visitation, (2) from an order of said court, entered March 31, 2006, which granted petitioner's application, in proceeding No. 2 pursuant to Social Services Law § 384-b, to adjudicate respondent's children to be permanently neglected, and terminated respondent's parental rights, and (3) from an order of said court, entered April 4, 2006, which dismissed petitioner's application, in proceeding No. 3, pursuant to Family Ct Act article 10, to hold respondent in violation of a prior order of visitation.

Kane, J.

Family Court previously found that Antonio EE. (hereinafter respondent) abused and neglected his three children (Matter of Kila DD., 28 AD3d 805 [2006]). The Schoharie County Department of Social Services (hereinafter petitioner) filed a petition seeking to terminate respondent's parental rights based on permanent neglect. Respondent filed two petitions alleging that petitioner violated the visitation order and attempting to modify the visitation order. The court found that the children were permanently neglected, terminated respondent's parental rights and dismissed his modification and violation petitions. Respondent appeals.

In a permanent neglect proceeding, the threshold inquiry is whether the agency proved that it made diligent efforts to strengthen and encourage the parent-child relationship (see Matter of Gregory B., 74 NY2d 77, 86 [1989]; Matter of Sheila G., 61 NY2d 368, 386-387 [1984]; Matter of Yvonne N., 6 AD3d 769, 770 [2004], lv denied 3 NY3d 604 [2004]). The next step is determining whether the parent fulfilled his or her duty to both maintain contact with the children and develop a realistic plan for their future; permanent neglect may be found upon a default of either duty (see Social Services Law § 384-b [7]; Matter of Gregory B., supra at 87).

As part of its diligent efforts, petitioner arranged for visitation and phone calls between respondent and the two youngest children at the state correctional facility where respondent was incarcerated (cf. Matter of Amanda C., 281 AD2d 714, 716 [2001], lv denied 96 NY2d 714 [2001]). A court order did not permit any contact between respondent and the oldest child. Petitioner also provided respondent information and updates regarding the children's progress, except for the oldest child who did not want respondent to receive any information about her. Because respondent is incarcerated and not eligible for release until 2022, petitioner had no obligation to work toward reunification of the children with him.

Despite petitioner's efforts to strengthen and encourage the parent-child relationship and assist respondent in developing a realistic plan for the children's future, respondent failed to cooperate with petitioner on more than one occasion. Respondent engaged in inappropriate conversations with the children in violation of reasonable rules established by petitioner. Respondent inappropriately communicated with the caseworker by sending her intimidating letters and asking her to have a nonprofessional relationship with him. Respondent also refused to sign releases sent to him by petitioner which would have permitted petitioner to disclose information to relatives who could be potential placement resources for the children. Finally, respondent revoked a release which permitted petitioner to obtain information from the Department of Correctional Services about respondent's success in programming which was relevant to facilitating contact with the children. Where, as here, an incarcerated parent fails to cooperate with agency efforts to assist the parent in planning for the children's future and arranging visits with the children, the agency is not required to demonstrate diligent...