Nassau Cnty. Dep't of Soc. Servs. v. Vernice B. (In re Jamel Raheem B.)

• Decision Date: 15 November 2011
• Parties: In the Matter of JAMEL RAHEEM B. (Anonymous).Nassau County Department of Social Services, respondent;Vernice B. (Anonymous), appellant. (Proceeding No. 1).In the Matter of Jamel B. (Anonymous).Nassau County Department of Social Services, respondent;Vernice B. (Anonymous), appellant. (Proceeding No. 2).
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 08354

89 A.D.3d 933

933 N.Y.S.2d 307

In the Matter of JAMEL RAHEEM B. (Anonymous).Nassau County Department of Social Services, respondent;Vernice B. (Anonymous), appellant. (Proceeding No. 1).In the Matter of Jamel B. (Anonymous).Nassau County Department of Social Services, respondent;Vernice B. (Anonymous), appellant. (Proceeding No. 2).

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

Nov. 15, 2011.

Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and Argun M. Ulgen of counsel), for appellant.

John Ciampoli, County Attorney, Mineola, N.Y. (Joseph A. Kellermann of counsel), for respondent.

Geanine Towers, Brooklyn, N.Y., attorney for the child.REINALDO E. RIVERA, J.P., RANDALL T. ENG, ARIEL E. BELEN, and LEONARD B. AUSTIN, JJ.

In a child neglect proceeding pursuant to Family Court Act article 10, and a related proceeding pursuant to Social Services Law § 384–b to terminate parental rights, the mother appeals from (1) an order of the Family Court, Nassau County (Dane, J.), dated December 18, 2009, and (2) an order of fact-finding and disposition of the same court dated May 11, 2010, which, after fact-finding and dispositional hearings, found that she had permanently neglected the subject child, terminated her parental rights as to the subject child, and placed the child in the guardianship and custody of the Nassau County Department of Social Services for the purpose of adoption.

ORDERED that the appeal from the order dated December 18, 2009, is dismissed as abandoned, without costs or disbursements; and it is further,

ORDERED that the order of fact-finding and disposition dated May 11, 2010, is affirmed, without costs or disbursements.

“In proceedings to terminate parental rights based on permanent neglect, the agency must establish as a threshold matter that it made diligent efforts to encourage and strengthen the parental relationship” ( Matter of Joseph Albert R. [Joseph R.], 2 A.D.3d 528, 528, 768 N.Y.S.2d 491; see Matter of Sheila G., 61 N.Y.2d 368, 380–381, 474 N.Y.S.2d 421, 462 N.E.2d 1139). However, evidence of diligent efforts on the part of the agency are not required when “[t]he parent has failed for a period of six months to keep the agency apprised of his or her location, provided that the court may consider the particular delays or barriers an incarcerated parent ... may experience in keeping the agency apprised of his or her location” (Social Services Law § 384–b[7][e][i] ).

Here, the mother admitted that she had no contact with the Nassau County Department of Social Services (hereinafter the DSS) from sometime in September 2006, until April 2007. Accordingly, the Family Court properly found that, notwithstanding the mother's incarceration during a portion of this period of time, the DSS's obligation to demonstrate diligent efforts was excused, since the whereabouts of the mother were unknown for six months or more, and the mother failed to keep the DSS apprised of her whereabouts ( see Social Services Law § 384–b[7][a]; Matter of Leavon Marvin B., 60 A.D.3d 941, 876 N.Y.S.2d 111; Matter of Kimberly Vanessa J., 37 A.D.3d 185, 186, 829 N.Y.S.2d 473).

As to the finding of permanent neglect ( see Social Services Law § 384–b[7][c] ), “[a]t a minimum, a parent's duty to plan for the future of his or her child requires the parent to correct the problems that led to the child being removed from the parent's care” ( Matter of Maldrina R., 219 A.D.2d 723, 723, 631 N.Y.S.2d 742; see Matter of Nathaniel T., 67 N.Y.2d 838, 840, 501 N.Y.S.2d 647, 492 N.E.2d 775; Matter of Leon RR, 48 N.Y.2d 117, 125, 421 N.Y.S.2d 863, 397 N.E.2d 374; Matter of Leon G., 7 A.D.3d 524, 525, 776 N.Y.S.2d 77).

Here, the child was removed from the mother's care in June 2006 because of the mother's history of drug use. It is undisputed that in September 2006, the mother left, without having completed drug rehabilitation programs at the Family Treatment Court and the Family and Children's Association that she had been attending, and she relapsed into drug use. Ultimately, she was arrested for selling drugs. By failing to complete the rehabilitative services to which she had been referred by the DSS, the mother failed to plan for the child during the period from September 2006 to February 2007 ( see Social Services Law § 384–b[7][c]; Matter of David O.C., 57 A.D.3d 775, 870 N.Y.S.2d 389; Matter of Leon G., 7 A.D.3d at 525, 776 N.Y.S.2d 77).

The evidence supported the Family Court's finding that the mother's plan of obtaining an apartment and finding a job as a chef was, at the time of the finding of neglect, made on May 8, 2009, not “realistic and viable.” Based on that finding, and the mother's failure, while incarcerated, to “provide any realistic and feasible alternative to having [the...