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

38
CAF 10-00241
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND MARTOCHE, JJ.


IN THE MATTER OF HOLDEN W.
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CATTARAUGUS COUNTY DEPARTMENT OF SOCIAL          MEMORANDUM AND ORDER
SERVICES, PETITIONER-RESPONDENT;

KELLY W., RESPONDENT-APPELLANT.


EMILY A. VELLA, SPRINGVILLE, FOR RESPONDENT-APPELLANT.

STEPHEN J. RILEY, OLEAN, FOR PETITIONER-RESPONDENT.

MICHAEL J. SULLIVAN, ATTORNEY FOR THE CHILD, FREDONIA, FOR HOLDEN W.


     Appeal from an order of the Family Court, Cattaraugus County
(Michael L. Nenno, J.), entered January 8, 2010 in a proceeding
pursuant to Social Services Law § 384-b. The order terminated the
parental rights of respondent.

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

     Memorandum: Respondent mother appeals from an order terminating
her parental rights pursuant to Social Services Law § 384-b on the
ground of permanent neglect and transferring guardianship and custody
of the child in question to petitioner. Contrary to the mother’s
contention, petitioner established by clear and convincing evidence
that it made the requisite diligent efforts to encourage and
strengthen the mother’s relationship with the child (see Matter of
Sheila G., 61 NY2d 368, 373). The record establishes that, inter
alia, petitioner referred the mother to treatment programs for
substance abuse and mental health, both of which she failed to
complete, and assisted her with transportation. Petitioner also
intervened on the mother’s behalf to prevent the termination of her
Medicaid benefits.

     We further conclude that Family Court properly determined that
the mother failed to plan for the child’s future (see Matter of
Rachael N., 70 AD3d 1374, lv denied 15 NY3d 708; Matter of Lilian I.,
60 AD3d 1491, 1492). During the 18 months between the placement of
the child in foster care and the permanent neglect hearing, the mother
failed to complete her treatment programs, continued to associate with
the child’s abusive father and appeared for at least two supervised
visits with the child while under the influence of alcohol. At one of
those visits, a breathalyzer test indicated that the mother had a
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                                                         CAF 10-00241

blood alcohol content of .10%. Finally, based on the conduct of the
mother and considering the supportive and loving environment provided
by the proposed adoptive parents, we conclude that the court did not
abuse its discretion in denying the mother’s request for a suspended
judgment (see Matter of Tiara B., 70 AD3d 1307, lv denied 14 NY3d 709;
Matter of Emmeran M., 66 AD3d 1490; Matter of Jose R., 32 AD3d 1284,
1285, lv denied 7 NY3d 718).




Entered:   February 18, 2011                   Patricia L. Morgan
                                               Clerk of the Court
