                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered:   February 23, 2017               520812
                                                       521635
________________________________

In the Matter of ZOEY O. and
   Others, Alleged to be
   Permanently Neglected
   Children.

BROOME COUNTY DEPARTMENT OF                 MEMORANDUM AND ORDER
   SOCIAL SERVICES,
                    Respondent;

VERONICA O.,
                    Appellant.
________________________________


Calendar Date:   January 18, 2017

Before:   McCarthy, J.P., Garry, Lynch, Devine and Mulvey, JJ.

                             __________


     Joan E. Mencel, Endwell, for appellant.

      Thomas P. Coulson, Broome County Department of Social
Services, Binghamton, for respondent.

     Michael J. Sullivan, Vestal, attorney for the children.

                             __________


Devine, J.

      Appeals from two orders of the Family Court of Broome
County (Pines, J.), entered March 2, 2015 and August 7, 2015,
which granted petitioner's application, in a proceeding pursuant
to Social Services Law § 384-b, to adjudicate the subject
children to be permanently neglected, and terminated respondent's
parental rights.
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      Respondent is the mother of Haveen P. (born in 2006), Amira
O. (born in 2007) and Zoey O. (born in 2009), all of whom were
removed from her care in January 2011 after one of her other
children died under suspicious circumstances. Family Court
adjudicated the three children to have been neglected in August
2011, and they were in the supervised custody of their maternal
grandmother until July 2012, when custody was surrendered to
petitioner. Respondent was incarcerated on pending charges
related to the child's death from September 2011 onward and, in
February 2012, she gave birth to Omari O. Omari was found to
have been derivatively neglected by respondent and placed in the
care of petitioner and, for a period of time, the four children
lived together in a foster placement.

      Respondent was convicted of crimes that included murder in
the second degree and manslaughter in the first degree and, in
February 2013, she was sentenced to an aggregate prison term of
25 years to life to be followed by postrelease supervision.
Petitioner filed the present petition in September 2013, alleging
that respondent had permanently neglected the four children by,
among other things, failing to plan for their future. Family
Court conducted a fact-finding hearing and determined that
respondent had, indeed, permanently neglected the children.
Following a dispositional hearing, Family Court terminated her
parental rights with the expectation that the three eldest
children would be placed for adoption and that Omari would remain
in the custody of a fit and willing relative. Respondent now
appeals from both the fact-finding and dispositional orders.1



    1
        Inasmuch as the fact-finding order in this permanent
neglect proceeding is nondispositional, the appeal from it must
be dismissed (see Family Ct Act § 1112 [a]; Matter of Jah'Meir G.
[Eshale G.], 112 AD3d 1014, 1015 [2013], lv denied 22 NY3d 863
[2014]). We nevertheless address "issues from the fact-finding
phase of the proceeding . . . [in] our review of the
dispositional order" (Matter of Jah'Meir G. [Eshale G.], 112 AD3d
at 1015; see CPLR 5501 [a] [1]; Matter of Adele T. [Kassandra
T.], 143 AD3d 1202, 1203 [2016]).
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      Petitioner met its threshold burden of coming forward with
clear and convincing evidence – in particular, testimony of the
caseworker who handled respondent's case that Family Court
implicitly found credible – that it made "diligent efforts to
encourage and strengthen the parental relationship" (Social
Services Law § 384-b [7] [a]; accord Matter of Hailey ZZ. [Ricky
ZZ.], 19 NY3d 422, 429 [2012]). Haveen, Amira and Zoey were
placed in the custody of the maternal grandmother following their
removal and, despite the fact that respondent was only in the
area intermittently and refused to tell the caseworker where she
was living, a plan was formulated that aimed at returning those
children to respondent. Respondent was expected to engage in
services that included parenting classes, domestic violence
training and counseling, while the caseworker monitored the
progress of the children with their grandmother and arranged for
child counseling as needed. Respondent was also free to engage
in supervised visitation with the three children, although visits
were sometimes prevented by respodent's failure to seek the
caseworker's approval for them in a timely manner.

      The efforts to strengthen the parental relationship
continued, albeit in a more restrained fashion, after respondent
was incarcerated in September 2011. The grandmother, who had
custody of the three eldest children until she surrendered such
to petitioner in June 2012, was responsible for coordinating
visitation between respondent and the three eldest children. The
caseworker's understanding was that respondent did not want this
visitation to occur and, when respondent did request visitation
after the children entered into petitioner's custody,
difficulties in adjusting to their new foster placement made
visitation inadvisable. The caseworker did arrange for visits
between respondent and Omari, who was placed in foster care after
his birth, and encouraged respondent to engage in the services
available at prison. In light of the foregoing, while all
visitation ceased after respondent was convicted of murder in the
second degree (see Family Ct Act § 1085 [1]), Family Court did
not err in finding that petitioner made "diligent efforts to
encourage and strengthen [respondent's] relationship with the
subject child[ren]" (Matter of Landon U. [Amanda U.], 132 AD3d
1081, 1084 [2015]; see Matter of Jazmyne II. [Frank MM.], 144
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AD3d 1459, 1460 [2016]; Matter of Marquise JJ. [Jamie KK.], 91
AD3d 1137, 1138-1139 [2012], lv denied 19 NY3d 801 [2012]).

      Petitioner also demonstrated that respondent had not
"develop[ed] a realistic plan for the children's future" as
required (Matter of Johanna M. [John L.], 103 AD3d 949, 950
[2013], lv denied 21 NY3d 855 [2013]; see Social Services Law
§ 384-b [7]; Matter of Jazmyne II [Frank MM.], 144 AD3d at 1460).
Respondent was less than communicative with the caseworker as to
the services she was engaged in and, indeed, the caseworker
remained unsure of what services respondent completed at the time
of the fact-finding hearing. Respondent was facing a substantial
term of imprisonment, in any event, and she failed to provide
contact information for individuals she believed could care for
the children or otherwise encourage those individuals to take
action toward that end. The record, as a result, supports the
finding of permanent neglect (see Matter of Jayden XX. [John
XX.], 127 AD3d 1286, 1286-1287 [2015]; Matter of Hannah T.
[Joshua U.], 95 AD3d 1609, 1610-1611 [2012], lv denied 19 NY3d
813 [2012]).

      Remittal is, however, required for a new dispositional
hearing. Upon appeal from respondent's criminal conviction, this
Court modified the judgment of conviction by reversing her murder
and manslaughter convictions and dismissing the underlying counts
of the indictment. Respondent is accordingly not facing the
lengthy term of imprisonment anticipated at the time the
dispositional order was issued and, as such, it is unclear
whether the best interests of the children continue to demand the
termination of her parental rights. Thus, we agree with
petitioner and respondent that a new dispositional hearing is
required (see Matter of Brandon Michael R. [Wandalee R.], 116
AD3d 620, 620-621 [2014]; Matter of Malik S. [Jana M.], 101 AD3d
1776, 1777-1778 [2012]).

      Respondent's remaining contention regarding the propriety
of terminating her parental rights relating to Omari has been
rendered academic given the need for a new dispositional hearing.
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     McCarthy, J.P., Garry, Lynch and Mulvey, JJ., concur.



      ORDERED that the appeal from the order entered March 2,
2015 is dismissed, without costs.

      ORDERED that the order entered August 7, 2015 is modified,
on the law, without costs, by reversing so much thereof as
terminated respondent's parental rights, freed Haveen P., Amira
O. and Zoey O. for adoption and placed Omari O. with a fit and
willing relative; matter remitted to the Family Court of Broome
County for further proceedings not inconsistent with this Court's
decision and, pending said proceedings, the terms of said order
shall remain in effect on a temporary basis; and, as so modified,
affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
