SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

32 

CAF 13-00010 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ. 

 

IN THE MATTER OF ALEX C., JR. 

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CATTARAUGUS COUNTY DEPARTMENT OF SOCIAL MEMORANDUM AND ORDER

SERVICES, PETITIONER-RESPONDENT; 

 

ALEX C., SR., RESPONDENT-APPELLANT. 

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

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

GERALD M. DRISCOLL, ATTORNEY FOR THE CHILD, OLEAN.

 

Appeal from an order of the Family Court, Cattaraugus County

(Michael L. Nenno, J.), entered June 27, 2012 in a proceeding pursuant

to Social Services Law § 384-b. The order, inter alia, terminated the

parental rights of respondent with respect to the subject child on the

ground of permanent neglect. 

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 freed the child for adoption. 

Contrary to the father’s contention, petitioner established “by clear

and convincing evidence that it made diligent efforts to encourage and

strengthen the relationship between [the father] and the child”

(Matter of Ja-Nathan F., 309 AD2d 1152, 1152; see § 384-b [3] [g] [i];

[7] [a]). Among other things, petitioner arranged for a psychological

evaluation of the father, facilitated supervised visitation between

the child and the father both before and during the father’s

incarceration, recommended various services, and followed up with the

father to remind him of those services. 

Contrary to the further contention of the father, Family Court

properly determined that he failed to plan for the future of the child

(see Matter of Serenity G. [Orena G.], 101 AD3d 1639, 1640; see also

Social Services Law § 384-b [7] [a]). Although the father claimed

that he took parenting classes while in prison, he told his caseworker

that the classes were “stupid” and that he did not believe that he had

learned anything in them. The father did not engage in mental health

counseling, substance abuse treatment, or a domestic violence program
-2- 32 

CAF 13-00010 

as recommended by petitioner and the psychologist who evaluated him. 

Further, the record establishes that the father’s only “plan” for the

child was that the child remain in foster care until the end of the

father’s term of incarceration. “The failure of an incarcerated

parent to provide any ‘realistic and feasible’ alternative to having

the child[ ] remain in foster care until the parent’s release from

prison . . . supports a finding of permanent neglect” (Matter of Gena

S. [Karen M.], 101 AD3d 1593, 1594, lv dismissed 21 NY3d 975; see

Matter of Jaylysia S.-W., 28 AD3d 1228, 1229).

The father failed to preserve for our review his further

contention that the court should have issued a suspended judgment

instead of terminating his parental rights (see Matter of Nestor H.O.

[Nestor H.], 68 AD3d 1733, 1733; Matter of Shadazia W., 48 AD3d 1058,

1058). In any event, the evidence supports the court’s determination

that termination of the father’s parental rights is in the best

interests of the child, and that the father’s “negligible progress” in

addressing the issues that initially necessitated the child’s removal

from his custody was “ ‘not sufficient to warrant any further

prolongation of the child’s unsettled familial status’ ” (Matter of

Alexander M. [Michael A.M.], 106 AD3d 1524, 1525; see Matter of Joanna

P. [Patricia M.], 101 AD3d 1751, 1752, lv denied 20 NY3d 863; Matter

of Keegan JJ. [Amanda JJ.], 72 AD3d 1159, 1161-1162). Moreover,

petitioner established that the child was thriving in his foster

placement and that the child’s foster parents, i.e., his maternal

great aunt and great uncle, intended to adopt him. 

Entered: February 7, 2014 Frances E. Cafarell

Clerk of the Court