Tompkins Cnty. Dep't of Soc. Servs. v. Ricky ZZ. (In re Hailey ZZ.)

Decision Date07 June 2012
Citation972 N.E.2d 87,19 N.Y.3d 422,948 N.Y.S.2d 846,2012 N.Y. Slip Op. 04374
PartiesIn the Matter of HAILEY ZZ., a Child Alleged to be Permanently Neglected. Tompkins County Department of Social Services, Respondent; Ricky ZZ., Appellant.
CourtNew York Court of Appeals Court of Appeals


Paul J. Connolly, Delmar, for appellant.

Daniel S. Feder, Ithaca, for respondent.

O'Connor & Kruman, P.C., Cortland (Randolph V. Kruman of counsel), Attorney for the Child.

Legal Aid Bureau of Buffalo, Inc., Buffalo (Russell E. Fox, David C. Schopp and Pamela L. Neubeck of counsel), for Legal Aid Bureau of Buffalo, Inc., amicus curiae.

William K. Taylor, County Attorney, Rochester (Peter A. Essley of counsel), for Monroe County Department of Social Services, amicus curiae.

Stephen M. Dorsey, County Attorney, Ballston Spa (Karen E.S. D'Andrea of counsel), and Roger A. Wickes, County Attorney, Fort Edward (Daniel S. Martindale of counsel), for Saratoga County Department of Social Services and another, amici curiae.



This appeal calls upon us to resolve a conflict within the Appellate Division as to whether Family Court may direct continuing contact between parent and child once parental rights have been terminated pursuant to Social Services Law § 384–b. We hold that the court lacks this authority.


Hailey ZZ., born in late 2007, initially resided with her birth mother and father and an older half-sister, a child of Hailey's mother and a different father. Father was sentenced to 5 to 15 years in prison in early 2008, when Hailey was three months old, and has apparently remained incarcerated ever since. On November 5, 2008, the Tompkins County Department of Social Services (DSS), effecting a removal under section 1024 of the Family Court Act, took Hailey and her half-sister away from their mother. The girls were placed in DSS's custody to reside with certified foster parents.

On March 26, 2010, DSS filed petitions against both parents, seeking orders adjudicating Hailey to be permanently neglected, terminating parental rights and committing her guardianship and custody to DSS ( seeSocial Services Law § 384–b; Family Ct. Act § 614). On July 23, 2010, Hailey's mother surrendered her parental rights and signed a postadoption visitation agreement ( seeSocial Services Law § 383–c). DSS withdrew its petition against mother, and proceeded with the fact-finding hearing against father (Family Ct. Act § 622).

In a decision and order entered on August 12, 2010, Supreme Court 1 first determined that DSS had made the requisite diligent efforts to encourage and strengthen the parental relationship by maintaining regular contact with father after Hailey's placement in November 2008, insuring monthly visitations, requesting the necessary information to plan for the child's care and investigating the individuals whom father suggested to be Hailey's caretakers. He noted that DSS's diligent efforts “overcame as many barriers” posed by father's incarceration “as possible to assist [him] in reuniting with the child.”

Next, Supreme Court determined that father had failed to plan for Hailey's future for more than one year after she came under DSS's care. The judge acknowledged that father had maintained contact with Hailey and DSS and had participated in various prison programs, but opined that this was insufficient. He observed that father was not likely to be released from prison until June 2011 at the earliest, and more likely later, possibly not until 2018; that once released, father would “have to obtain suitable housing and address some parenting issues prior to gaining placement of the child”; and that Hailey had already been in foster care for 20 months and “need[ed] to achieve permanency.”

As a result of these circumstances, Supreme Court concluded that father's “only alternative [was] to come up with a plan for the care of [Hailey] until he [was] able to resume custody.” The judge concluded that father failed to do this because the family members or others whom he proposed to care for Hailey were uniformly unsuitable: his father had a “lengthy history” with DSS, and one sister had such a “history” as well; father “admitted” that neither would be an “appropriate” custodian; the other sister was fired from her job as a health aide after being accused of elder abuse; 2 and his girlfriend of seven months and the distant relatives whom he identified barely knew Hailey, and “there [was] no indication whatsoever that they [were] interested or appropriate.” Accordingly, Supreme Court adjudicated Hailey to be permanently neglected and ordered the requisite dispositional hearing ( seeFamily Ct. Act §§ 623, 625).

In a decision and order entered on October 29, 2010 after the dispositional hearing, Supreme Court considered whether it was in Hailey's best interests to terminate father's parental rights and commit guardianship to DSS, or, alternatively, suspend judgment.3 The judge remarked that father had been in prison “during the entire period” of Hailey's foster care—two thirds of her life—and that once released, would still need to obtain stable housing and “possibly engage in other services[ ] before the child could be returned to his care.” He concluded that it was in Hailey's best interests to terminate father's parental rights and free her for adoption so as to achieve permanency.

Additionally, Supreme Court denied father's request for continuing visitation with Hailey. Father cited several Fourth Department cases to support the availability of this option. The judge noted, though, that Third Department precedent did not allow for a court to mandate continuing contact between a parent and child after parental rights had been terminated pursuant to Social Services Law § 384–b. He added that such contact would, in any event, not be in Hailey's best interests as there was no evidence of any emotional or lasting connection between Hailey and father; indeed, they had spent only about 72 hours together in two years' time, or the equivalent of 3 out of 730 days. Nor was there evidence to show whether Hailey's potential adoptive parents “would be receptive to future visitation for [father],” or, if this adoption fell through, whether such a requirement “would discourage other potential adoptive parents.” In sum, Supreme Court ruled it was in Hailey's best interests to terminate father's parental rights, without posttermination visitation “even if the Third Department allowed [it],” rather than suspend judgment. Father appealed.

The Appellate Division affirmed, concluding that the evidence supported Supreme Court's finding that DSS “made the requisite diligent efforts”; and there was “no basis to disturb the [judge's] conclusion that [father] failed to plan for the child's future” (85 A.D.3d 1265, 1266, 924 N.Y.S.2d 643 [3d Dept.2011] ). The Appellate Division also determined that the record supported Supreme Court's

“finding that, instead of remaining in foster care on a long-term basis while [father] remains incarcerated, it is in the child's best interests to be freed for adoption by the foster parents, who have expressed a willingness to adopt [Hailey] and her half sister, to whom she is closely bonded” ( id. at 1266–1267, 924 N.Y.S.2d 643).4

Further, “the request for posttermination visitation was properly denied as unavailable in a contested termination proceeding” ( id. at 1267, 924 N.Y.S.2d 643). We granted father leave to appeal (17 N.Y.3d 709, 930 N.Y.S.2d 554, 954 N.E.2d 1180 [2011] ), and now affirm.


An authorized agency that brings a proceeding to terminate parental rights based upon permanent neglect bears the burden of establishing that it has made “diligent efforts to encourage and strengthen the parental relationship” (Social Services Law § 384–b [7][a]; see Matter of Sheila G., 61 N.Y.2d 368, 380–381, 474 N.Y.S.2d 421, 462 N.E.2d 1139 [1984] ). “Those efforts must include counseling, making suitable arrangements for visitation, providing assistance to the parents to resolve or ameliorate the problems preventing discharge of the child to their care and advising the parent at appropriate intervals of the child's progress and development” (Matter of Star Leslie W., 63 N.Y.2d 136, 142, 481 N.Y.S.2d 26, 470 N.E.2d 824 [1984];seeSocial Services Law § 384–b [7][f] ).

Once diligent efforts have been established, the agency must prove that the parent has permanently neglected the child, as defined in Social Services Law § 384–b (7)(a), by

“fail[ing] for a period of [more than one year] following the date such child came into the care of an authorized agency 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, notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child.”

Further, at the ensuing dispositional hearing the court must consider only the best interests of the child involved, which is essentially a factual determination ( see Matter of Star Leslie W., 63 N.Y.2d at 147–148, 481 N.Y.S.2d 26, 470 N.E.2d 824).

Father argues that DSS did not prove by the required clear and convincing evidence that it exercised diligent efforts, or that he failed to plan for Hailey. Thus, he contends, Supreme Court should have dismissed the permanent neglect petition. But DSS established that it arranged visitation for father, communicated with him regarding service plans and Hailey's progress and investigated various relatives proposed as resources for placement. And as we emphasized in Matter of Gregory B., 74 N.Y.2d 77, 89–90, 544 N.Y.S.2d 535, 542 N.E.2d 1052 (1989), while the Legislature in Social Services Law § 384–b (7)

“acknowledged the ‘special circumstances' of an incarcerated parent ... [t]his does not mean ... that the Legislature intended to approve a plan of indefinite foster care for the child of an...

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