        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

543
CAF 15-00550
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND SCUDDER, JJ.


IN THE MATTER OF JOSHUA T.N., JUSTIN W.N.,
AND TAWNY L.M.
-------------------------------------------       MEMORANDUM AND ORDER
WAYNE COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;

TOMMIE M., JR., RESPONDENT-APPELLANT.


CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT.

GARY LEE BENNETT, LYONS, FOR PETITIONER-RESPONDENT.

V. BRUCE CHAMBERS, ATTORNEY FOR THE CHILDREN, NEWARK.


     Appeal from an order of the Family Court, Wayne County (Dennis M.
Kehoe, J.), entered March 13, 2015 in a proceeding pursuant to Social
Services Law § 384-b. The order, among other things, terminated
respondent’s parental rights with respect to the subject children.

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

     Memorandum: In this proceeding pursuant to Social Services Law
§ 384-b, respondent father appeals from an order that terminated his
parental rights with respect to the subject children on the ground of
permanent neglect and transferred guardianship and custody of the
children to petitioner. Contrary to the father’s contention, we
conclude that petitioner established by clear and convincing evidence
that it made diligent efforts to encourage and strengthen the
relationship between the father and the children, taking into
consideration the particular problems facing the father and tailoring
its efforts to assist him in overcoming those problems (see § 384-b
[7] [a]; cf. Matter of Olivia L., 41 AD3d 1226, 1226-1227). The
evidence adduced at the fact-finding hearing established that
petitioner, inter alia, scheduled regular visitation and referred the
father to services designed to address his needs regarding his mental
health, anger management, alleged substance abuse, and parenting
skills. We reject the father’s contention that petitioner could not
engage in diligent efforts to reunite him with his children while
simultaneously planning for the children’s potential adoption (see
Matter of Anastasia S. [Michael S.], 121 AD3d 1543, 1544, lv denied 24
NY3d 911; see generally Matter of Maryann Ellen F., 154 AD2d 167, 169-
170, appeal dismissed 76 NY2d 773).
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                                                         CAF 15-00550

      We also reject the father’s contention that petitioner did not
prove that he failed to plan for the children’s future, “ ‘including
that [he failed to] address[ ] the problems that caused the removal’
of the child[ren]” (Matter of Rachael N. [Christine N.], 70 AD3d 1374,
1374, lv denied 15 NY3d 708). Although the father took advantage of
some of the services offered by petitioner, petitioner demonstrated
that, among other things, the father “inconsistently appl[ied] the
knowledge and benefits [he] obtained from the services provided,”
continued to “act[ ] inappropriately in the child[ren]’s presence”
(Matter of Douglas H. [Catherine H.], 1 AD3d 824, 825, lv denied 2
NY3d 701), and on occasion failed to cooperate with representatives of
petitioner despite a prior order directing that he do so. We
therefore conclude that petitioner demonstrated by clear and
convincing evidence “that the father ‘failed to address successfully
the problems that led to the removal of the child[ren] and continued
to prevent the child[ren]’s safe return’ ” (Matter of Justain R. [Juan
F.], 93 AD3d 1174, 1175; see Matter of Nathaniel T., 67 NY2d 838, 841-
842).

     Finally, the father failed to preserve for our review his
contention that Family Court abused its discretion in failing to issue
a suspended judgment (see Matter of Dakota H. [Danielle F.], 126 AD3d
1313, 1315, lv denied 25 NY3d 909). In any event, a suspended
judgment was not warranted under the circumstances, despite the
father’s participation in services, inasmuch as the father did not, in
the two years between the removal of the children and the filing of
the permanent neglect petition, make any progress “ ‘sufficient to
warrant any further prolongation of the child[ren]’s unsettled
familial status’ ” (Matter of Donovan W., 56 AD3d 1279, 1280, lv
denied 11 NY3d 716).




Entered:   June 17, 2016                        Frances E. Cafarell
                                                Clerk of the Court
