State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 8, 2015 518251 

________________________________

In the Matter of BRITINY U.,

Alleged to be a Permanently

Neglected Child.

ULSTER COUNTY DEPARTMENT OF 

SOCIAL SERVICES,

Respondent;

TARA S.,

Appellant.

(Proceeding No. 1.)

_______________________________ MEMORANDUM AND ORDER

In the Matter of MANUEL U.,

Alleged to be a Permanently

Neglected Child.

ULSTER COUNTY DEPARTMENT OF

SOCIAL SERVICES,

Respondent;

TARA S.,

Appellant.

(Proceeding No. 2.)

________________________________

Calendar Date: November 21, 2014

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

__________

Marshall Nadan, Kingston, for appellant.

Heather Harp, Ulster County Department of Social Services,

Kingston, for respondent.
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Ted J. Stein, Woodstock, attorney for the children.

__________

McCarthy, J.P.

Appeals from two orders of the Family Court of Ulster

County (McGinty, J.), entered November 25, 2013, which granted

petitioner's applications, in two proceedings pursuant to Social

Services Law § 384-b, to adjudicate the subject children to be

permanently neglected, and terminated respondent's parental

rights.

In November 2011, petitioner removed respondent's two

children (born in 2003 and 2009) from her care upon her arrest

and incarceration for the rape of a 12-year-old child. She was

ultimately convicted of rape in the second degree and sentenced

to three years in prison followed by 10 years of postrelease

supervision. In December 2012, petitioner filed permanent

neglect petitions for both children. Following hearings, Family

Court adjudged the children to be permanently neglected by

respondent and terminated her parental rights. Respondent

appeals.

Initially, the petitions complied with the statutory time

prerequisite. Permanent neglect can only be established if a

child is in the care of an authorized agency for, as relevant

here, one year and the parent fails to maintain contact or plan

for the child's future during that time period (see Social

Services Law § 384-b [7] [a]). Respondent incorrectly argues

that the time when a parent is incarcerated does not count toward

that one-year time period. The statute excludes time when "a

parent is actually hospitalized or institutionalized," but that

statutory toll is stated directly after a subdivision discussing

hospitalization or institutionalization due to drug or alcohol

use (Social Services Law § 384-b [7] [d] [ii]). Hence, the toll

applies to time periods when a parent is in an institution or

hospital for drug or alcohol treatment, not when a parent is in a

penal institution (see e.g. Matter of Gregory B., 74 NY2d 77, 82,

89 [1989]; Matter of Kaiden AA. [John BB.], 81 AD3d 1209, 1209-
-3- 518251 

1211 [2011]; Matter of Lawrence KK. [Lawrence LL.], 72 AD3d 1233,

1233-1235 [2010], lv denied 14 NY3d 713 [2010]). Thus, the

petitions complied with the statutory time requirement.

Respondent did not preserve her argument that Family Court

improperly relied on inadmissible hearsay evidence. "Only

competent, material and relevant evidence may be admitted in a

fact-finding hearing"; hearsay is not competent, so it is not

admissible (Family Ct Act § 624; see Family Ct Act § 1046 [b]

[iii]; Matter of Aiden XX. [Jesse XX.], 104 AD3d 1094, 1096 n 5

[2013]). Because the caseworker assigned to respondent and her

children during the relevant time period had left the employ of

petitioner's contractor, petitioner's only witness at the factfinding hearing was the caseworker's supervisor. Respondent

objected to the supervisor's testimony twice on the ground of

hearsay. Family Court overruled the first objection, noting that

a hearsay objection may be appropriate at a later time, but not

as to that particular question. The court sustained the second

objection. Inasmuch as respondent did not make further hearsay

objections, she did not preserve her current argument that most

of the supervisor's testimony was inadmissible hearsay (see

Matter of Perry v Surplus, 112 AD3d 1077, 1080 [2013]; Matter of

Kayden H. [Kareena H.], 104 AD3d 764, 765 [2013]; compare Kulak v

Nationwide Mut. Ins. Co., 40 NY2d 140, 145-146 [1976]). Hence,

we will not address that argument, and will rely on the

supervisor's testimony as evidence when addressing respondent's

argument that petitioner failed to meet its burden.

Petitioner made diligent efforts to strengthen the parentchild relationship, but respondent failed to adequately plan for

the children's future and maintain contact with them. Where a

parent is incarcerated, an agency's duty may be satisfied by

"informing the parent of the children's well-being and progress,

responding to the parent's inquiries, investigating relatives

suggested by the parent as placement resources, and facilitating

communication between the children and the parent" (Matter of

Charles K. [Charles L.], 100 AD3d 1308, 1308 [2012]; accord

Matter of Joannis P. [Joseph Q.], 110 AD3d 1188, 1190 [2013], lv

denied 22 NY3d 857 [2013]; see Social Services Law § 384-b [7]

[f]). Here, petitioner presented evidence that the caseworker

sent regular letters to respondent concerning the children's
-4- 518251 

well-being and respondent's rights, as well as informing her that

the caseworker could accept collect calls to discuss the

situation. When respondent suggested the children's uncle as a

possible placement resource, petitioner's caseworker attempted to

contact the uncle but received no response. While respondent was

in the local jail for several months before her conviction, she

was provided with biweekly visitation with the children. After

her transfer to a state correctional facility six hours away,

Family Court did not require visitation due to the travel

distance as well as recommendations from the children's

therapists against visitation. During that time period, the

caseworker encouraged respondent to write letters to the children

and for them to write back to her or draw pictures for her. The

caseworker also kept in contact with respondent's corrections

counselor regarding her programming in prison. Hence, petitioner

met its burden of showing that it engaged in diligent efforts to

facilitate respondent's relationship with the children (see

Matter of Joannis P. [Joseph Q.], 110 AD3d at 1190; Matter of

Kaiden AA. [John BB.], 81 AD3d 1209, 1209-1210 [2011]).

Respondent was required, "despite [her] incarceration, to

develop a realistic plan for the children's future" (Matter of

Johanna M. [John L.], 103 AD3d 949, 950 [2013], lv denied 21 NY3d

855 [2013]). Her plan was for the children to remain in foster

care throughout her incarceration and for a period of time

thereafter as necessary for her to establish suitable living

arrangements for the children. She had uncertain plans to move

herself and her children in with a new boyfriend that she met a

few months earlier while in prison, and who the children had

never met, but also testified that she would need to get to know

him better. These vague plans, which would leave the children in

foster care for a period of years, were not viable to secure

permanency for the children (see Matter of Johanna M. [John L.],

103 AD3d at 951; Matter of Hailey ZZ. [Ricky ZZ.], 85 AD3d 1265,

1266 [2011], affd 19 NY3d 422 [2012]; Matter of Kaiden AA. [John

BB.], 81 AD3d at 1210-1211). Respondent also had not adequately

addressed the problem that led to the children's removal, so as

to plan for their return to her care. Despite being ordered to

participate in sex offender treatment, she took months to enroll. 

Her testimony regarding the reasons for the delay were not

consistent or compelling. Respondent's testimony regarding the
-5- 518251 

underlying crime also shows that she failed to fully accept

responsibility and understand the errors in judgment that led to

her sexual relationship with a 12-year-old boy. Although

respondent did successfully complete parenting and anger

management classes, she failed to fully address the underlying

problems that led to the children's removal and had no plan other

than leaving them in foster care indefinitely. Based on her

failure to plan for their future, despite diligent efforts by

petitioner, Family Court correctly found that respondent

permanently neglected her children, and properly terminated her

parental rights to free the children for adoption (see Matter of

Hailey ZZ. [Ricky ZZ.], 85 AD3d at 1266-1267).

Family Court did not err in issuing orders of protection

prohibiting respondent from contacting the children until they

reach the age of majority. Although an order of protection

issued against a parent in a Family Ct Act article 10 proceeding

can only remain in effect as long as an accompanying

dispositional order (see Family Ct Act § 1056 [1]; Matter of

Sheena D., 8 NY3d 136, 139-140 [2007]; compare Family Ct Act

§ 1056 [4] [permitting orders of protection to extend throughout

a child's minority when applied to a nonparent]), an order of

protection issued in a termination of parental rights matter can

be in effect "for a specific time," which can include until the

child turns 18 (Family Ct Act § 656; see Matter of Kristian J.P.

v Jeannette I.C., 87 AD3d 1337, 1338 [2011]; Matter of Krista I.

v Gregory I., 8 AD3d 696, 698 [2004]). Once respondent's

parental rights were terminated, she had no right to contact the

children and the court had no authority to direct contact between

her and the children (see Matter of Hailey ZZ [Ricky ZZ.], 19

NY3d 422, 438 [2012]). Respondent's son expressed a desire not

to see her and became upset at hearing her letters, despite being

in weekly therapy. Her daughter, who was only two years old when

placed in foster care, had severe developmental delays and has

bonded to the foster parents. Based on this record evidence, the

court properly issued orders of protection prohibiting respondent

from contacting the children. 

Garry, Lynch, Devine and Clark, JJ., concur.
-6- 518251 

ORDERED that the orders are affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court