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

733
CAF 11-00442
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND SCONIERS, JJ.


IN THE MATTER OF NOAH V.P.
--------------------------------------------
ONEIDA COUNTY DEPARTMENT OF SOCIAL SERVICES,      MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

GINO P., SR., RESPONDENT-APPELLANT.


JOHN J. RASPANTE, UTICA, FOR RESPONDENT-APPELLANT.

JOHN A. HERBOWY, COUNTY ATTORNEY, UTICA (DENISE J. MORGAN OF COUNSEL),
FOR PETITIONER-RESPONDENT.

PETER J. DIGIORGIO, JR., ATTORNEY FOR THE CHILD, UTICA, FOR NOAH V.P.


     Appeal from an order of the Family Court, Oneida County (James R.
Griffith, J.), entered January 5, 2011 in a proceeding pursuant to
Social Services Law § 384-b. The order, among other things,
transferred custody and guardianship of the subject child to
petitioner.

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

     Memorandum: On appeal from an order of disposition that, inter
alia, terminated his parental rights, respondent father contends that
petitioner failed to establish by clear and convincing evidence that
it made diligent efforts to unite the father and his child who is the
subject of this proceeding before seeking to terminate his parental
rights (see Social Services Law § 384-b [7] [a]). We reject that
contention because we conclude that petitioner made the requisite
“diligent efforts,” i.e., “reasonable attempts by an authorized agency
to assist, develop and encourage a meaningful relationship between the
parent and child” (§ 384-b [7] [f]).

     Here, the father has three other children with the mother of the
subject child, and he took custody of the other children in March or
April 2008. In July 2008, the subject child was removed from the
mother’s home and placed in foster care. The child was adjudicated a
neglected child with respect to the mother in September 2008, and the
mother’s parental rights were terminated in May 2010. When the child
was placed in foster care, petitioner asked the father to take custody
of him but he declined and, indeed, he did not believe that he was the
father of the child. The caseworker for petitioner encouraged the
father to file a paternity petition, but the father waited until
                                 -2-                           733
                                                         CAF 11-00442

February 2009 to do so and was not adjudicated the father until July
2009. The caseworker met with the father twice a month from the time
the child entered foster care and kept him updated on the child. The
caseworker invited the father to all the service plan reviews
regarding the child, but he attended only one of them. Even after the
paternity adjudication, the father expressed no desire to have custody
of the child and instead was in favor of an adoption plan for the
child.

     “[W]hen it is clear that the birth parent cannot or will not
provide a normal family home for the child and when continued foster
care is not an appropriate plan for the child, then a permanent
alternative home should be sought for the child” (Social Services Law
§ 384-b [1] [a] [iv]). In addition, “[a]n agency which has tried
diligently to reunite a [parent] with [his or] her child but which is
confronted by an uncooperative or indifferent parent is deemed to have
fulfilled its duty” (Matter of Star Leslie W., 63 NY2d 136, 144). We
conclude that petitioner established the requisite diligent efforts by
demonstrating that it made reasonable attempts to develop and
encourage a relationship between the father and the child.

     We reject the father’s further contention that petitioner failed
to establish by clear and convincing evidence that he permanently
neglected the child. Permanent neglect “may be found only after it is
established that the parent has failed substantially and continuously
or repeatedly to maintain contact with or plan for the future of the
child although physically and financially able to do so” (id. at 142,
citing Social Services Law § 384-b [7] [a]). The term “ ‘to plan for
the future of the child’ ” means “to take such steps as may be
necessary to provide an adequate, stable home and parental care for
the child within a period of time which is reasonable under the
financial circumstances available to the parent” (§ 384-b [7] [c]; see
Matter of Orlando F., 40 NY2d 103, 110). Here, the father sought
custody of the child only when petitioner filed its petition seeking
to terminate his parental rights, after he refused to sign a judicial
surrender to allow the adoption to proceed. Contrary to the father’s
contention, the evidence at the fact-finding hearing establishes that
he was financially able to take custody of the child since the time he
was placed in foster care. The father obtained public assistance for
the child’s siblings, and could have done the same for the subject
child. Moreover, the father had an additional child with his
girlfriend in May 2009 and was able to care for him financially. We
conclude that petitioner thus established that the father failed to
plan to have the child reside with him, although the father was
physically and financially able to do so, and therefore permanently
neglected him.

     Finally, we reject the father’s contention that the court abused
its discretion in refusing to issue a suspended judgment. The court
at the dispositional hearing is concerned only with the best interests
of the child (see Family Ct Act § 631; Star Leslie W., 63 NY2d at
147). At the time of the dispositional hearing, the child had been
living in a kinship foster home in Florida for six months, had bonded
with the foster mother, and was doing very well. As the court noted,
                                 -3-                           733
                                                         CAF 11-00442

the foster mother’s actions in coming to New York once or twice a
month for the first half of the year so that the child could bond with
her showed her commitment to the child, whom she planned to adopt. In
contrast, the father has had minimal contact with the child since his
birth and has little to no bonding with the child (see Matter of
Emmeran M., 66 AD3d 1490). We thus conclude that the court properly
terminated the father’s parental rights and freed the child for
adoption.




Entered:   June 8, 2012                        Frances E. Cafarell
                                               Clerk of the Court
