In re Aubree R.

2023 NY Slip Op 03635

IN THE MATTER OF AUBREE R., JAELYNN R., AND LEIGH B. ONONDAGA COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, PETITIONER-RESPONDENT; NATASHA B., RESPONDENT-APPELLANT, AND MICHAEL R., RESPONDENT.

No. 498 CAF 22-00562

Supreme Court of New York, Fourth Department

June 30, 2023

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS R. BABILON OF COUNSEL), FOR RESPONDENT-APPELLANT.

ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (ERIN WELCH FAIR OF COUNSEL), FOR PETITIONER-RESPONDENT.

ARLENE H. BRADSHAW, SYRACUSE, ATTORNEY FOR THE CHILDREN.

PRESENT: LINDLEY, J.P., CURRAN, MONTOUR, AND OGDEN, JJ.

Appeal from an order of the Family Court, Onondaga County (Julie A Cecile, J.), entered March 23, 2022, in a proceeding pursuant to Social Services Law § 384-b. The order, among other things, terminated respondents' parental rights with respect to the subject children.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum On appeal from an order terminating her parental rights with respect to the three children who are the subject of this proceeding on the ground of permanent neglect, respondent mother contends that petitioner failed to establish that it exercised diligent efforts to encourage and strengthen the parental relationship both prior to and during the period of her incarceration as required by Social Services Law § 384-b (7) (a). We reject that contention.

"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'" (Matter of Hailey ZZ. [Ricky ZZ.], 19 N.Y.3d 422 429 [2012], quoting Social Services Law § 384-b [7] [a]; see generally Matter of Star Leslie W., 63 N.Y.2d 136, 142 [1984])." '[D]iligent efforts'... mean reasonable attempts... to assist, develop and encourage a meaningful relationship between the parent and the child" (§ 384-b [7] [f] [emphasis added]), and they" 'include reasonable attempts at providing counseling, scheduling regular visitation with the child[ ] providing services to the parent[] to overcome problems that prevent the discharge of the child[ ] into [the parent's] care, and informing the parent[] of [the child's] progress'" (Matter of Whytnei B. [Jeffrey B.], 77 A.D.3d 1340, 1341 [4th Dept 2010]; see Matter of Caidence M. [Francis W.M.], 162 A.D.3d 1539, 1539 [4th Dept 2018], lv denied 32 N.Y.3d 905 [2018]). The "[p]etitioner is not required, however, to guarantee that the parent succeed in overcoming [the parent's] predicaments... but, rather, the parent must assume a measure of initiative and responsibility" (Whytnei B., 77 A.D.3d at 1341 [internal quotation marks omitted]).

"While an agency's obligation to exercise diligent efforts is not obviated by a parent's incarceration..., it does create[] some impediments, both to the agency and to the parent, leading courts to conclude that diligent efforts in such circumstances may be established by the agency apprising the incarcerated parent of the child's well-being, developing an appropriate service plan, investigating possible placement of the child with relatives suggested by the parent, responding to the parent's inquiries and facilitating telephone contact between the parent and child" (Caidence M., 162 A.D.3d at 1539 [internal quotation marks omitted]; see Social Services Law § 384-b [7] [f]; Matter of Callie H. [Taleena W.], 170 A.D.3d 1612, 1613 [4th Dept 2019], lv denied 35 N.Y.3d 905 [2020]).

Here, petitioner established by clear and convincing evidence (see Social Services Law § 384-b [3] [g] [i]) that it fulfilled its duty to exercise diligent efforts to encourage and strengthen the mother's relationship with the children during the relevant time period, but that the mother failed to plan for the future of the children or to progress meaningfully to overcome the predicaments that initially endangered the children and led to their removal from her care (see Callie H., 170 A.D.3d at 1613-1614 ; Matter of Jaxon S. [Jason S.], 170 A.D.3d 1687, 1688-1689 [4th Dept 2019]; see generally Star Leslie W., 63 N.Y.2d at 142).

We reject the mother's further contention that she was denied effective assistance of counsel when her attorney failed to object to allegedly inadmissible business records and allegedly prejudicial court exhibits. "It is axiomatic that, because the potential consequences are so drastic, the Family Court Act affords protections equivalent to the constitutional standard of effective assistance of counsel afforded defendants in criminal proceedings" (Matter of Kelsey R.K. [John J.K.], 113 A.D.3d 1139 1140 [4th Dept 2014], lv denied 22 N.Y.3d 866 [2014] [internal quotation marks omitted]; see Matter of Elijah D. [Allison D.], 74 A.D.3d 1846, 1847 [4th Dept 2010]). Here, the mother's attorney successfully objected at the hearing to the admission of numerous records and refused to stipulate to other records. Even assuming, arguendo, that the mother's attorney should have objected to the other evidence offered by petitioner (see generally Matter of Dustin H., 40 A.D.3d 995, 996 [2d Dept 2007]), we conclude that "the record, viewed in totality, reveals that the [mother] received meaningful representation" (Matter of Carter...