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

445
CAF 14-00178
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF DAVIANNA L.
-------------------------------------------      MEMORANDUM AND ORDER
MONROE COUNTY DEPARTMENT OF HUMAN SERVICES,
PETITIONER-RESPONDENT;

DAVID R., RESPONDENT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE YOON OF COUNSEL),
PRO BONO APPEALS PROGRAM, FOR RESPONDENT-APPELLANT.

MERIDETH H. SMITH, COUNTY ATTORNEY, ROCHESTER (CAROL L. EISENMAN OF
COUNSEL), FOR PETITIONER-RESPONDENT.

BRYAN S. OATHOUT, ATTORNEY FOR THE CHILD, ROCHESTER.


     Appeal from an order of the Family Court, Monroe County (Joseph
G. Nesser, J.), entered January 10, 2014 in a proceeding pursuant to
Social Services Law § 384-b. The order, among other things, adjudged
that respondent had permanently neglected the subject child and
transferred guardianship and custody of the subject child to
petitioner.

     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, inter alia,
terminated his parental rights with respect to the subject child on
the ground of permanent neglect and transferred guardianship and
custody of the child to petitioner. We reject the father’s contention
that petitioner failed to establish that it made diligent efforts to
encourage and strengthen the parental relationship. Upon our review
of the record, we conclude that petitioner presented the requisite
clear and convincing evidence that the assigned caseworker made
repeated and diligent efforts to encourage and strengthen the parental
relationship between the child and the father, who was incarcerated,
including through written correspondence and telephonic communication
(see Matter of Jaylysia S.-W., 28 AD3d 1228, 1228-1229; see generally
Matter of Alex C., Jr. [Alex C., Sr.], 114 AD3d 1149, 1149-1150, lv
denied 23 NY3d 901). Contrary to the father’s further contention,
petitioner established that, despite those efforts, the father failed
substantially and continuously or repeatedly to maintain contact with
or plan appropriately for the child’s future (see Alex C., Jr., 114
AD3d at 1150; Matter of Whytnei B. [Jeffrey B.], 77 AD3d 1340, 1341).
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                                                           CAF 14-00178

“The [father’s] failure .   . . to provide any ‘realistic and feasible’
alternative to having the   child[ ] remain in foster care until [his]
release from prison . . .   supports a finding of permanent neglect”
(Matter of Gena S. [Karen   M.], 101 AD3d 1593, 1594, lv dismissed 21
NY3d 975).




Entered:   May 1, 2015                            Frances E. Cafarell
                                                  Clerk of the Court
