Matter of Leake & Watts Servs. Inc. (Kevin G.)

[*1] Matter of Leake & Watts Servs. Inc. (Kevin G.) 2016 NY Slip Op 50447(U) Decided on April 5, 2016 Family Court, Bronx County Hettleman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 5, 2016
Family Court, Bronx County

In the Matter of the Application of Leake and Watts Services, Inc. For the Custody and Guardianship of

against

Kevin G. "NO GIVEN NAME" G., a/k/a KAYDEN G., Children under the Age of Eighteen Years, Pursuant to the Provisions of §384-b of the Social Services Law of the State of New York.



B-XXXX/14 & B-XXXX/14



For Leake and Watts Services, Inc.:

James M. Abramson, Esq.

Law Offices of James M. Abramson, PLLC

375 Fifth Avenue Fourth Floor

New York, New York 10016

For the Respondent Father:

Elizabeth M. Johanns, Esq.

909 Sheridan Avenue, No.3

Bronx, New York 10451

For the Child Kevin G.: Patricia B. DeCola, Esq.

909 Sheridan Avenue, #3

Bronx, New York 10451

For the Child Kayden G.:

Alison Holstein, Esq.

Legal Aid Society — Juvenile Rights Practice

900 Sheridan Avenue, Rm. 6C-12

Bronx, New York 10451
Robert D. Hettleman, J.

This is a written decision memorializing the oral decision I gave in court on February 24, 2016, after a fact finding trial on petitions filed by Leake and Watts Services, Inc. ("Agency") for two siblings, Kevin G. (DOB _/_/2011) ("Kevin") and Kayden G. (DOB _/_/2013) ("Kayden"). The Agency filed two petitions seeking the termination of parental rights ("TPR"), one for each child, against Ms. Jennifer G., the mother of both children, and Mr. Kevin S., whose parental status is discussed below. Kevin's petition was filed on March 25, 2014; Kayden's was filed on August 26, 2014. On June 9, 2015, while the fact finding was in progress, Ms. G. voluntarily surrendered her parental rights (on certain conditions, including that the children be adopted by their current foster parents), and accordingly the trial did not continue with respect to her. Thus, this decision relates only to Mr. S.

I. SUMMARY OF DECISION

The TPR petition for Kevin alleges that (1) Mr. S. is not is not a person whose consent is required for Kevin's adoption, pursuant to Domestic Relations Law §111(1)(d) and that instead, Mr. S. is only entitled to notice of these proceedings pursuant to DRL §111-a and Social Services Law §384-c; and (2) as an alternative cause of action, Mr. S. permanently neglected Kevin within the meaning of SSL §384-b(7).

The TPR petition for Kayden alleges that (1) there is no individual alleged to be Kayden's father who is entitled to notice of these proceedings pursuant to DRL §111-a and SSL §384-c; and (2) Mr. S permanently neglected Kayden within the meaning of SSL §384-b(7).

In short, I was asked to determine Mr. S.'s legal standing and status with respect to both children, and also to determine whether those children were permanently neglected by Mr. S. With respect to Kevin, I find that the Agency established by clear and convincing evidence that there is no male whose consent is required under DRL §111(1)(d) for his adoption and that Mr. S. is only entitled to notice of these proceedings pursuant to DRL §111-a and SSL §384-c. With respect to Kayden, I find that there is no male whose consent is required under DRL §111(1)(d) for his adoption, and that there is no man entitled to notice of these proceedings pursuant to DRL §111-a and Social Services Law §384-c. In addition, and in the alternative, I find that even if Mr. S.'s consent were required for the adoption of the children, the Agency proved by clear and convincing evidence that Mr. S. permanently neglected both children as defined by SSL §384-[*2]b(7).

II. THE TRIAL

The trial on both petitions began on January 21, 2015, and continued on January 30, April 27, June 9, June 23, September 1, September 3, and October 14, 2015. After the conclusion of the evidence in the trial, the parties submitted written summations and legal arguments to the Court. On February 24, 2016, I issued an oral decision on the record in court.

At trial, the Agency called one witness, Stacey St. Jean, a Case Planner at Leake and Watts. In addition, they introduced into evidence Petitioner's Exhibits ("Pet. Ex.") 1 and 2, the birth certificates for the subject children Kevin and Kayden; Pet. Ex. 3, case notes from Leake and Watts covering the time period of June 14, 2011 through August 29, 2014; Pet. Ex. 4, Leake and Watts written referrals provided to the respondents in this case; and Pet. Ex. 5, the Dispositional Order, dated September 17, 2013, from the neglect case relating to the child Kayden and his mother. The attorneys for the children did not call any witnesses or introduce any evidence.

Mr. S. and his attorney called as witnesses Ms. Maxine K. (Mr. S.'s mother) and the respondent himself. In addition, Mr. S. introduced into evidence Respondent's Exhibit ("Resp. Ex.") A, an Order of Filiation for the child Kevin; and Resp. Ex. B, a paternity petition for Kayden that Mr. S. filed on September 24, 2015 and that remains pending at this time.

A. The Testimony of Stacy St. Jean, Case Planner

Ms. St. Jean testified that she was assigned to this family at Leake and Watts when Kevin first came into foster care in 2011, and she has been the worker on the case since then. Kevin came into foster care on June 14, 2011, and Kayden on May 28, 2013, and both children have been continuously placed with the Agency since those dates. From the time that Kevin first came into foster care, Ms. St. Jean regularly met with Mr. S. at visits, conferences, and meetings. She advised Mr. S. about his service plan, which originally included treatment for substance abuse, domestic violence counseling or services, completion of an anger management class, and completion of a parenting class. On numerous occasions, Ms. St. Jean described to Mr. S. that he needed to follow his service plan in order to be able to have Kevin, and later Kayden, put into his care. Further, she repeatedly warned him that if he did not comply with his service plan, a TPR could be filed once either child was in foster care for 15 out of any 22 months.

Throughout 2011 and 2012, Ms. St. Jean referred Mr. S. to numerous service providers, including Argus, Vertex, Palladia, Odyssey House, and Exodus. By his own admission, Mr. S. did not meaningfully engage in services at any of them. Ms. St. Jean repeatedly re-advised him [*3]of the possible consequences of his failure to do so, and she continued to make referral after referral. At one point in June of 2012, Ms. St. Jean reminded Mr. S. that Kevin soon would have been in foster care for 15 months, and thus the Agency would be authorized to change the permanency goal for Kevin to adoption. Mr. S. still failed to fully engage in his services at that time. However, towards the end of 2012 and into 2013, Mr. S. began to successfully engage in and complete the services. By January of 2014, Mr. S. had completed a drug treatment program at the Osbourne Association, anger management and parenting classes, and domestic violence services. In addition, Mr. S. submitted to drug tests requested by the Agency and tested negative.

Throughout the cases, the Agency scheduled visits on a regular basis for Mr. S. with Kevin, and then with both children after Kayden was born. Mr. S.'s attendance at supervised Agency visits was somewhat inconsistent after Kevin first came into care, including a two-and-a-half-month period from January through mid-March 2012 when he did not attend any visits at the Agency at all (although he did say he had been seeing Kevin in the community during that period). However, from that time onward, Mr. S.'s attendance at Agency visits was good. Mr. S. brought the children food, played games, read with them, and fostered a good relationship. Over time, the agency raised a few concerns about Mr. S.'s behavior or parenting skills, but for the most part, the interactions with the children were good.

As Mr. S. continued to make progress, Ms. St. Jean advised Mr. S. that if he wished for either or both children to have overnight visits or to reside with him in the future, he would have to maintain a stable source of income and housing suitable for himself and the children. Throughout the entire case, Mr. S. stated that he was not regularly employed and did not receive public assistance, and he said that he sometimes resided with his mother (Ms. K.) or with a girlfriend. Nevertheless, on November 21, 2013, the agency held a Trial Discharge Conference with Mr. S. and his mother. The Agency offered a trial discharge of Kevin only, and they communicated to Mr. S. and Ms. K. the conditions that (1) Mr. S. and Kevin were to reside with Mr. S.'s mother, Ms. K.; (2) Mr. S. was permitted to supervise community visits between Ms. G. and Kevin; but (3) that Mr. S. was not permitted to leave Kevin alone with Ms. G. at any time. Mr. S. and Ms. K. agreed to these conditions, and on November 23, 2013, the agency began the trial discharge of Kevin to Mr. S.

Ms. St. Jean testified that in December of 2013, she made several visits to Ms. K.'s house in order to observe the home and the family. On those occasions, she never saw Mr. S. or Kevin there. On December 11th, Ms. St. Jean observed that neither Mr. S. nor Kevin were present at Ms. K.'s home, and Ms. St. Jean noticed a bed the family appeared to have prepared for Kevin. At some point, Ms. St. Jean suspected that Mr. S. and Kevin were not residing with Ms. K. at all but rather with Ms. G. On December 17th, Ms. St. Jean again went to Ms. K.'s home, and again Mr. S. and the child were not there. Ms. K. was present, and Ms. St. Jean observed the child's bed to be in the very same condition it had been on December 11th — still made and as if it had not been slept in. Notably, Ms. St. Jean did notice an odor in the home as if floor work was being done.

Due to her suspicion that Mr. S. was inappropriately spending time at the home of Ms. G., Ms. St. Jean arranged for a different worker to go to Ms. G.'s home at that same time on December 17th. While Ms. St. Jean was at the home of Ms. K., she received a call from the other [*4]worker, stating that the child Kevin was at Ms. G.'s home, in the care of Ms. G. alone.[FN1] When Ms. St. Jean arrived at Ms. G.'s home a short time later, the police, Ms. G. and Kevin were coming out of the home. Ms. St. Jean was again informed that Mr. S. had left Kevin with Ms. G.[FN2] Ms. St. Jean called Mr. S.'s cellphone five or six times over the next hour, but he did not answer. Around 5:30pm, Ms. St. Jean finally spoke with him on the telephone, whereupon Mr. S. provided several statements about what had happened. At one point, he said that he and Kevin had been staying at Ms. G.'s since December 15th. At another point, he said that during the trial discharge, he and Kevin had been staying with Mr. S.'s girlfriend, Christine R., and not at Ms. K.'s. When Ms. St. Jean asked him for Ms. R.'s address, Mr. S. refused provide it.

As a result of the events on December 17th, the agency ended the trial discharge, and Kevin returned to foster care and lived in the same foster home as his brother Kayden.

In January of 2014, the Agency held a Goal Change Conference with Mr. S. and Ms. K. During this conference, the events of December 17th were discussed. When asked about where he and Kevin had resided during the trial discharge, Mr. S. described that he had been living with his mother, Ms. K. In response, Ms. St. Jean reminded Mr. S. that he had told her, on December 17th, that he and Kevin had been residing with his girlfriend. Mr. S. responded that Ms. St. Jean was lying and that such a conversation never occurred. Also during the conference, Ms. St. Jean asked Mr. S. why it was that Kevin was alone with Ms. G. on December 17th, in violation of the conditions of the trial discharge and the court's order. Mr. S. replied that on the morning of December 17th, he had found a job shoveling snow and needed to earn some money. At that point, he felt that Ms. G. was the only person with whom he could leave Kevin, so he did so. In concluding the conference, Ms. St. Jean again discussed with Mr. S. the laws about permanency and the possible consequences of failing to comply with the agency's service plan and conditions.

Following the failed trial discharge, Mr. S. continued to visit the children regularly, including eventually having unsupervised day visits with them. For the most part, these visits went very well. However, right up until August 26, 2014, the filing date of the TPR relating to Kayden, Ms. St. Jean regularly and repeatedly asked Mr. S. where he was living. In response, he continued to tell her that he had been living at Ms. K.'s house during the trial discharge, that he wanted to move into a home of his own, and that he regularly stayed with either his mother or his girlfriend. However, Mr. S. never provided detailed contact information, a date of birth, or an address for Ms. R., despite Ms. St. Jean's warning that if the agency could not "clear" or approve a home and all of the adults in it, this failure would be a barrier to Mr. S. being able to live with either or both of the children. At one point after the failed trial discharge, Mr. S. brought Ms. R. to the Agency, and the Agency workers spoke to her about being cleared and having her fill out the necessary paperwork. The paperwork was never returned to the Agency, Ms. R. never made any further contact with the Agency, and Mr. S. did not offer any reason for this. When asked about what assistance the Agency provided Mr. S. with respect to housing, Ms. St. Jean described that she and Mr. S. spoke about public assistance and the need for him to have an [*5]income in order for the Agency to help him find housing other than public housing. Ms. St. Jean related that Mr. S. never inquired about whether he could move into the shelter system or other public or subsidized housing with the children, nor did Ms. St. Jean ever tell him that he could not do so. Finally, Ms. St Jean testified that Mr. S. never paid any financial support for the children to the Agency.

B. The Testimony of Maxine K., Mr. S.'s Mother

Ms. K. testified that she is Mr. S.'s mother and the grandmother of the child Kevin. Professionally, she described herself as a social worker and a CASAC worker (relating to substance abuse assessments) who was very familiar with Family Court and the child protection system.

She said that she was present at the trial discharge Conference on November 23, 2013, along with Mr. S., Ms. G. and the workers assigned to the case. She recalled that it was made clear that the trial discharge was conditioned upon Mr. S. and Kevin residing at Ms. K.'s home and that Kevin was not to be left alone with Ms. G. Both Mr. S. and Ms. K. agreed to those conditions. She said that Mr. S. and Kevin did reside with her during the trial discharge, but that they were not home when Ms. St. Jean visited prior to December 17th. She said that on the Sunday before December 17th (which would have been December 15th), she told Mr. S. to take Kevin elsewhere because Ms. K. was going to have her floors done, which she feared would be problematic for Kevin, who has asthma. She said that Mr. S., Kevin, and Ms. K.'s daughter left the home that Sunday at about 8:00pm.

On December 17th, Ms. St. Jean visited Ms. K.'s home, and Ms. K. explained the situation. Later that day, Ms. K. was notified by Ms. G. that Kevin had been taken by the foster care agency. Ms. K. tried to reach Mr. S. on the phone, but without success. She testified that at some point on a later date, she did ask Mr. S. why he had left Kevin with Ms. G., to which Mr. S. replied that he had not felt like going to his sister's house, so he and Kevin spent the night at Ms. G.'s home. He further told her that the next morning, he got the snow removal job and left Kevin with Ms. G.

Ms. K. also described that over the time that Kevin was in foster care, she knew of Mr. S.'s service plan and wanted to help him. Thus, she regularly provided information to him about various drug treatment programs, parental support programs, and parenting classes.

Additionally, she said that she has always put herself forward as a resource for Kevin but that she "withdrew" each time that it seemed like the children were heading back to be with one of their parents. When the children were placed in the same foster home after the failed trial discharge, she said she went to the foster care agency but did not remember if she went to court. When the agency began discussing the filing of the TPRs, Ms. K. said that they would not have a meaningful discussion with her about being a resource for the children. At some point later, she again came to court, but she testified that she was not sure if she withdrew a petition for guardianship or if it was dismissed.

Ms. K. then stated that in the months leading up to the trial discharge, Mr. S. lived with Ms. K. He was not employed at the time, and she supported him financially. She testified that Mr. S. did not claim Kayden as his son when Kayden was born, but that she believes Mr. S. may have done so during court proceedings at some point after the trial discharge had failed.

C. Kevin S., the Respondent Father

Mr. S. testified that he is the father of both children. In the past, he had done some college and trade school, but he was unemployed for most of the recent years. He described that since he was a teenager, he suffered from cellulitis, Milroy's disease, or lymphedema — all words for the same thing where the symptoms include swollen legs, redness to the feet, fever, and an inability to stand for long periods of time.

He stated that when Kevin was born in 2011, ACS was at the hospital, but that Kevin was not placed into foster care until a few months later. In 2011, he was still planning to be with Ms. G. and to care for Kevin together with her. However, he had stopped living with her when he found out that she was pregnant with Kayden, and Ms. G. "pretty much" lived by herself for that whole pregnancy. Notably, later in his testimony, he stated that he lived with Ms. G. up until "a little after" Kayden was born, but that he did not "fully live there," and that he and Ms. G. "weren't together." Regardless of their living situation, by the time Kayden was born in 2013, Mr. S. was no longer planning jointly with Ms. G. Mr. S. had some concerns about whether or not he was the father of Kayden. In addition, he did not sign Kayden's birth certificate, stating that he was told that if he did so, he would be accused as a respondent in a neglect proceeding for Kayden. Nevertheless, Mr. S. said he visited Kayden in the hospital every day.

When Kayden initially was placed in foster care, Mr. S. was in favor of the children being returned to Ms. G.'s care, but that never occurred. When Kayden was born, Mr. S. learned that cocaine was found in the child's system. He also knew that as a result of this, Ms. G.'s unsupervised visits with Kevin were suspended at that time. When Kayden left the hospital and went to reside in the foster home where Kevin was placed, Mr. S. visited both children in that home. However, Mr. S. testified that because he had not signed the birth certificate for Kayden, he "couldn't do much" with Kayden during the visitation time. Accordingly, he took only Kevin out to the park, movies, to play, and to see family members, and he only visited with Kayden in the foster home.

Regarding his service plan with the Agency, Mr. S. knew that he was required to engage in programming for anger management, parenting, domestic violence, and a substance abuse program. He acknowledged that the case planners at the Agency made many referrals for him to attend numerous drug treatment programs and that he did not follow through with them. However, in late 2012 and then in 2013, he did engage in services and eventually completed them, including finishing the drug treatment program in 2013 and testing negative for drugs.

As his progress improved, Mr. S. began to get unsupervised visits with Kevin, and the agency began exploring a trial discharge of Kevin to Mr. S. He remembered the trial discharge conference, including the specific conditions that (1) he was required to live with Kevin at Ms. K.'s home; and (2) he was allowed to supervise Ms. G. visiting with Kevin in the community, but that he was not to leave Kevin alone with Ms. G.

Mr. S. described the incident in December leading to the end of the trial discharge. He testified that he went to Ms. G.'s home because Ms. K.'s floors were getting redone. He and Kevin spent the night there, and in the morning, Mr. S. received a phone call with a job offer to shovel snow. Mr. S. said that because he had spent the night in Ms. G.'s home, he knew that she had not used drugs or had any alcohol, so he thought it would be okay to leave Kevin with her while he went to work.

On cross-examination, Mr. S. conceded that he could have gone to his sister's that night, rather than to Ms. G.'s, but did not do so. Likewise, he admitted that he did not inform the Agency or seek permission to stay with Ms. G., but he stated that he did not believe he was required to do so.

Regarding his finances, Mr. S. testified that although he did not work regularly, he supported himself by getting help from his mother and that he received two cash settlements from two different accidents in previous years. In one incident, he was hit by a school bus, and in the other, he was hit by a car. He received approximately $36,000 in one settlement and between $10-15,000 for the other. He put this money in the bank at the time. He initially said that he knew that one of these incidents had occurred around 2006, but he was not sure about the timing of the other one. On cross-examination, however, he admitted that he received the $36,000 check when Kevin was already in foster care — at that time, in his third foster home.

Mr. S. recalled that at some point, when the agency began to ask about his finances, he tried to apply for welfare. However, he said that his application was denied because the public assistance authorities said he had too much money in the bank to qualify for public assistance. He claims to have shown the authorities paperwork proving that his finances were depleted but that his application was still rejected. He testified that he has never received disability or public assistance of any kind, and that in addition to the settlement money, he has earned some money through worK. at times. He stated that over the years, he had some of his own money in the bank and also got help and support from his mother.

When asked about whether he paid support for either of the children, he testified that he bought brought the children wipes, milk, "pampers," "clothes, toys, sneakers," and "things like that" for one or both of the children, but acknowledged that he never provided any financial support of any kind, attempted to do so nor inquired about how such support payments might be made.

When asked about the paternity of Kayden, Mr. S. testified that he never signed an acknowledgement of paternity for Kayden, but that he did acknowledge being the father in court proceedings. He further testified that he never filed a paternity petition relating to Kayden,[FN3] although he did so for Kevin at some point. He said that Kevin had lived with him for a month or [*6]two after his birth, but that Kayden never lived with him. He stated that when Kayden was placed into foster care after leaving the hospital, Mr. S. initially did not go to any court proceedings or seek to establish paternity. He admitted that, during the proceedings here in Bronx Family Court, he told a referee that he was not sure if Kayden was his child, and on cross-examination, he conceded that he suspected that Ms. G. had cheated on him, resulting in the pregnancy with Kayden. After Kayden was removed from Ms. G. in the hospital, Mr. S. did not remember if he knew what Ms. G.'s service plan was relating to the foster placement of Kayden.

Mr. S. testified that after the failed trial discharge, he believed that he asked for overnight visitation for both children. He also stated that he asked the Agency for help getting into a shelter or some type of residence so that he could be with the children. He said that he asked them for a child care voucher, but that the foster care agency told him he was not eligible for one because he neither worked nor went to school.

In response to direct questions on the issue of his residence, Mr. S.'s testimony was inconsistent. As stated above, at one point, he testified that he lived with Ms. G. from before Kevin's birth up until "a little after" Kayden was born in May of 2013. However, at another time, he also testified that he did not "fully live there" and that he and Ms. G. "weren't together." He testified that from May of 2013 through March of 2014, he was living with his mother Ms. K., and after that lived with his girlfriend Ms. R. However, he then back-tracked and said he was not sure of the dates. Overall, he was very vague and even evasive about the dates and timeframes of where he lived when and with whom. Mr. S. was not sure of when the Agency wanted to start overnight visits for him with Kevin and did not recall them telling him he needed an address or a cleared residence for overnight visits to begin. Mr. S. specifically recalled telling the agency more than once that he was willing to go into a shelter with Kevin. Mr. S. also denied refusing to provide the address of Ms. R.'s apartment, and he denied that Ms. R. refused to plan for the children to live with her and Mr. S.

D. Pet's Ex. 3 — The Progress Notes from the Case.

The progress notes in evidence are voluminous and detailed, but I will summarize the main points relevant to this decision. They describe that the Agency repeatedly referred Mr. S. to numerous treatment programs from 2011 to 2013. During this same time period, he tested positive for marijuana on many occasions and for cocaine at least once, and he was discharged from several programs for failing to attend regularly. He gave a variety of reasons for not following through with the programs, and he often asked for new referrals.

Regarding visitation, when Mr. S. did visit with Kevin in 2011 and 2012, those visits went well. However, he missed many visits at times, including going over two entire months without visiting in January and February of 2012. Regarding income, Mr. S. always told the Agency that he was not worK. and did not have any income, but he said that he had some money of his own and received support from his mother.

In 2012, Mr. S. acknowledged to the Agency that he and Ms. G. were arguing violently [*7]and that Mr. S. stated that if Ms. G. were found to be positive for HIV, he would hurt her.

By November of 2013, Mr. S. was doing well in his services and visiting Kevin regularly. He did not have stable housing or income, but he was able to live with his mother. Accordingly, the trial discharge of Kevin began with the conditions described above, and the notes also reflect the incident of December 17th.

III. LEGAL ANALYSIS

A. Mr. S.'s Consent Is Not Required for the Adoption of Either Child under Domestic Relations

Law §111

DRL §111 sets forth the categories of fathers who have the right to consent to an adoption proceeding. Importantly, while the Agency has bears the initial burden of going forward to establish that an alleged father's consent is not required, it is the alleged father who bears the ultimate burden of proof. See Matter of Dominique P., 24 AD3d 335, 336 (1st Dept. 2005); see also Matter of De'Von M.F.C., 105 AD3d 738 (2nd Dept. 2013) (respondent has the burden of proof); Matter of Taylor R., 290 AD2d 830 (3rd Dept. 2002) (respondent has burden).

As an initial matter, it is undisputed that Mr. S. was never married to Ms. G. For children born out of wedlock, DRL §111 sets forth different methods for a father establish that he is a so-called "consent father," depending in part upon the child's age when he or she was "placed for adoption" or "placed with the adoptive parents." Mr. S. and Ms. G. were living together when Kevin was born, and Kevin was removed from their care when he was approximately two months old. When Kayden was born, Mr. S. was no longer living with Ms. G., and Kayden was removed from Ms. G.'s care when he was approximately three days old. However, for the purposes of DRL § 111, the children would not be considered "placed for adoption" or "placed with the adoptive parents" on the date they were removed from their parents' care, as for some time after that the goal was still for them to be reunited. See Matter of Vanessa Ann G.-L., 50 AD3d 1036, 1038 (2nd Dept. 2008) (citing Matter of Ericka Stacey B., 27 AD23d 245, 246 (1st Dept. 2006)); Matter of Shatavia Jeffeysha J., 100 AD3d 501 (1st Dept. 2012); Matter of Tasha M., 33 AD3d 387 (1st Dept. 2006). For Kevin, the goal was changed after the failed trial discharge when he was around two years and nine months old, and the TPR was filed when he was almost three years old. For Kayden, his goal was changed to adoption sometime in August of 2014 when he was around fifteen months old, and his TPR was filed when he was approximately thirteen months old. Therefore, for each child, DRL §111(1)(d) controls. Id.; see also In re Heart Share Human Services of New York, 28 Misc 3d 1107, 1118 (Qns. Cty. Fam. Ct. 2010), reversed on factual grounds; Matter of Charle Chiedu E., 87 AD3d 1140 (2nd Dept. 2011) (upholding that DRL §111(1)(d) is the appropriate section for analysis).

Regardless of whether Mr. S. is the biological father of the children, in order to be a consent father under DRL §111(1)(d), Mr. S. would need to establish that he:

maintained substantial and continuous or repeated contact with the child as manifested by: (i) the payment toward the support of the child of a fair and reasonable sum, according to [his] means, and either (ii) visiting the child at least monthly when physically and financially able to do so and not prevented from doing so by the person or authorized agency having lawful custody of the child, or (iii) regular communication with the child or with the person or agency having the care or custody of the child, when physically and financially unable to visit the child or prevented from doing so by the person or authorized agency having lawful custody of the child.

DRL §111(1)(d).[FN4] The provision goes on to state that:

[t]he subjective intent of the father, whether expressed or otherwise, unsupported by evidence of the acts specified above manifesting such intent, shall not preclude a determination that the father failed to maintain substantial and continuous or repeated contact with the child. In making such a determination, the court shall not require a showing of diligent efforts by any person or agency to encourage the father to perform the acts specified in this paragraph. Id.

Based upon the evidence in the case, I find that Mr. S. has failed to establish that his consent would be required for either child's adoption. The first part of the test set forth in DRL §111(1)(d) requires the payment by the putative father toward the support of the child a fair and reasonable sum, according to the father's means. In Matter of Andrew Peter H.T., 64 NY2d 1090 (1985), the Court of Appeals deemed this to be a "threshold" provision and that the support provision must be satisfied before a court even begins to consider a putative father's communication with the child or agency. Matter of Andrew Peter H.T., 64 NY2d at 1090; see also In re Clarence Davion M., 124 AD3d 469 (1st Dept. 2015).

A record of paying some child support, but not showing a consistent or reliable record of support, is insufficient to meet the requirements of DRL §111(1)(d). Matter of Maxamillian, 6 AD3d 349 (1st Dept. 2004). Indeed, this requirement is applied so strictly that even where a respondent is incarcerated, the failure to provide support is fatal to a claim of being a consent father. In re Isaac Ansimeon F., 128 AD3d 232 (1st Dept. 2015); In re Aaron P., 61 AD3d 448 (1st Dept. 2009). Moreover, the law is clear that at foster care agency is not obligated in any way to inform a parent of his obligation to provide support, or even obligated to encourage him to do so. DRL §111(1)(d); see In re Marc Jaleel G., 74 AD3d 689 (1st Dept. 2010); Matter of Bella FF., 130 AD3d 1187, 1188 (3rd Dept. 2015).

Mr. S.'s own testimony was that he never paid support of any kind to the agency or anyone else for either Kevin or Kayden nor attempted to do so. He did say that he bought some wipes, milk, "pampers," "clothes, toys, sneakers," and "things like that" for one or both of the [*8]children at various times. However, he was vague and unspecific about the timing, frequency or amount of these purchases, and he did not submit any receipts, documentation, or other proof of any kind.

At the same time, his testimony as to his income and access to funds was at times inconsistent and not entirely credible. He testified that he was trained in construction and occasionally worked in construction, carpentry, or shoveling snow. He claimed that he had a medical condition that occasionally required his hospitalization and prevented him from working or even standing for long periods of time, yet he testified that he was able to perform manual labor at times. Moreover, despite claiming to have a condition that severely limited his ability to work, Mr. S. never filed for or received disability benefits. Indeed, he testified that he never received any kind of government benefits or support but that he was still able to support himself. He received the two large cash settlements from negligence suits, at least one of them, for $36,000, came to him while Kevin had already been in foster care for some time. He said that at the time Kevin was born, he had his "own money," and he said his mother helped him financially whenever he needed it. When asked on the stand where all of his money went, Mr. S. said he said he "[bought] his kids stuff ," continuing "I bought Kevin a lot of stuff. Half — mostly all his clothes and this [sic] other things I used for my kids."

Mr. S. also testified that he did apply for public assistance at some point — at the Agency's urging — but was turned down because "they said [he] had too much money." In court, he said that he did not actually have money at that time and that he showed documentation of this to the public benefits authorities but was still denied. He provided no proof or documentation for any of this at the trial, and moreover, there is no evidence that he appealed his denial of public assistance or followed up with the government or the Agency about this in any way.

Therefore, the evidence proved that Mr. S. had means, whether on his own or through support from others, but that he failed to establish that he provided "reasonable child support according to [his] means" to satisfy the requirements of DRL §111(1)(d). His self-serving testimony that he spent some money on clothing and other items for the children is insufficient under the law, In re Tiara J., 118 AD3d 545 (1st Dept. 2014) (citing cases), and overall, his testimony as to providing any support to these children was so vague and undetailed that it cannot be credited. See Aaron P., 61 AD3d at 448 (finding the respondent's testimony was too muddled and contradictory to adequately support his claim of being a consent father).

I will note that Mr. S.'s attorney raised in summation the point that in many of the cases cited by the petitioner to support the notion that the lack of support payments precludes me from finding that Mr. S. is a "consent" father, the father or putative father was also failing to visit or communicate with the child regularly. In this case, although Mr. S. may have missed some visits at various times during the children's foster care placements, no one is disputing that he maintained regular contact with the children and the Agency and visited the children regularly after mid-2012. But the overwhelming weight of authority and the plain language of DRL §111(1)(d) militate a finding that Mr. S. is not a consent father, despite his maintaining contact with the children. See In re Latricia M., 56 AD3d 1784 (1st Dept. 2008) (where father provided [*9]financial support to child for first four months of her life, then ceased paying support following the child's placement in foster care, father not entitled to consent pursuant to DRL §111(1)(d) notwithstanding his visiting the child weekly).

Accordingly, I find by clear and convincing evidence that Mr. S.'s consent is not required for the adoption of either of the children under the Domestic Relations Law.

B. Mr. S. Is Entitled to Notice for Proceedings Relating to the Adoption of Kevin under

Domestic Relations Law §111-a(2)(a) and Social Services Law §384-c, but Is Not Entitled toSuch Notice for Kayden

1. With respect to Kevin, Resp's Ex. A is an Order of Filiation declaring Mr. S. to be Kevin's legal father. All parties concede that Mr. S. is entitled to notice of the proceedings involving Kevin under DRL §111-a(2)(a) and SSL §384-c.

2. With respect to Kayden, although all parties stipulated in court that Mr. S. is Kayden's biological father for purposes of the trial, there is no evidence before me to support that he is entitled to notice of these proceedings under either the DRL or the SSL.

As an initial matter, no one is listed as the father on Kayden's birth certificate, and no one has registered as Kayden's father on the putative father registry. There is no evidence from the trial that any man filed a notice of intent to claim paternity of the child,[FN5] that Ms. G. filed a written sworn statement identifying the child's father, that Ms. G. was married at the time of the child's birth, or that she was married within six months after the child's birth.

To the contrary, Mr. S. acknowledged on the witness stand that for much of Kayden's life, he equivocated as to whether he believed Kayden was his child. Indeed, he chose to move out of Ms. G.'s home prior to the birth and then refused to sign the birth certificate. On September 24, 2015, Mr. S. finally filed and followed through with a paternity petition for Kayden, but as of the close of this trial, Mr. S. had not sought DNA testing nor established himself as a notice father with respect to Kayden in accordance with DRL §111-a or SSL §384-c.

Interestingly, and perhaps to the Agency's credit, despite Mr. S.'s failure to claim Kayden as his child, the Agency permitted him to visit and plan for Kayden. Indeed, the Agency has stated that it "desired" to give notice of Kayden's proceedings to Mr. S. anyway, and I expect that they will continue to do so and that he will be allowed to be heard in those proceedings. Nevertheless, the clear and convincing evidence establishes that Mr. S. is not legally entitled to notice of adoption proceedings related to Kayden.

C. Mr. S. Permanently Neglected both Children

1. Definitions relating to Permanent Neglect.

Even if Mr. S.'s consent were required for the adoption of either child, I find that the evidence proves clearly and convincingly that Mr. S. permanently neglected both children as defined by SSL §384-b(7).

SSL §384-b(7) defines a "permanently neglected child" as:

a child who is in the care of an authorized agency and whose parent or custodian has failed for a period of either at least one year or fifteen out of the most recent twenty-two months following the date such child came into the care of an authorized agency 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, notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child.

SSL §384-b(7). Accordingly, in order for the Agency to prove that Mr. S. permanently neglected the children, two things must be established. First, the Agency must show that it made diligent efforts to encourage and strengthen the parental relationship. Second, it must establish that despite these efforts, Mr. S. failed to substantially and continuously or repeatedly maintain contact with or plan for the future of the children for a period of more than one year or fifteen out of the twenty-two months following the date they came into foster care.

"Diligent efforts" are defined in SSL §384-b(7)(f) as reasonable attempts to assist, develop, and encourage a meaningful relationship between the parent and children by consultation and cooperation with the parent in developing a plan for appropriate services for the children and the family; making suitable visitation arrangements; providing services and other assistance to the parent so that the problems preventing the discharge of the children from foster care can be resolved or ameliorated; and informing the parent at appropriate intervals of the children's progress, development, and health. Id. The Agency is not charged with guaranteeing that the parent succeeds in overcoming his or her predicaments. Matter of Christina Ann B., 114 AD3d 407 (1st Dept. 2014). Once an agency has embarked on a diligent course, but faces an utterly uncooperative or indifferent parent, it should nevertheless be deemed to have fulfilled its duty. Matter of Byron Christopher Malik J., 309 AD2d 669 (1st Dept. 2003). Ultimately, the parent must assume "a measure of initiative and responsibility." Id.

"Plan for the future" of the children is defined by SSL §384-b(7)(c) as taking such steps as may be necessary to provide an adequate, stable home and parental care for the children within a period of time which is reasonable under the financial circumstances available to the parent. The plan must be realistic and feasible, and the parent's good faith effort shall not, in and of itself, be determinative. Id. Importantly, if an agency seeks to establish the failure of the parent to plan for a "one year period" under the statute, it need not be the one year period immediately prior to the filing of the termination of parental rights petition. Rather, it can be any [*10]one year period that the child is in foster care prior to the filing. See Matter of Star Leslie W., 63 NY2d 136 (1984).

2. Credibility findings from the trial.

I credit the testimony of the Agency case planner, Ms. St. Jean. She knew Mr. S. and this family's history well, and she had a decent factual memory of the events from some time ago. She did not seem to exaggerate or be biased in any way, and she readily acknowledged the positives about Mr. S., his eventual completion of the service plan, and his visits with the children. She had to refresh her recollection on occasion, which is understandable given the time frame of the allegations, and occasionally her testimony on cross differed from her direct — for example, about how many times she looked for Mr. S. and Kevin during the trial discharge before December 17th. But her testimony was also corroborated by the other witnesses and evidence in the case, and indeed Mr. S.'s testimony confirmed the majority of Ms. St. Jean's.

As for Mr. S.'s testimony, I found it credible in some parts but incredible in others. He was most straightforward and direct when talking about the children, their interests and needs, and spending time with them. He struck me as sincere in his love for both children, and no party disputes that Kevin and Kayden value Mr. S. in their lives. However, Mr. S. became very evasive on many topics, particularly during cross-examination by various attorneys. At times he stopped answering questions in a factual manner, instead asking questions back to the examiners, laughing, and editorializing about what others might have done in similar situations. In several areas, his testimony varied considerably between direct and cross — for example, on the issues of his finances, where and with whom he was living, and his evolving position over time about the paternity of Kayden. And some of his answers appeared plainly to be untrue — for example, that he did not think he needed to notify the Agency or seek permission to deviate from the conditions of the trial discharge.

I found Ms. K., too, to be credible in parts and less so in others. She presented as an intelligent woman who had tried to support her son over the years. And to her credit, she acknowledged that she expressed exasperation with Mr. S. when Mr. S. chose to spend the night with Ms. G. on the night the trial discharge failed. Further, she admitted that she was at the trial discharge conference and that the conditions were made completely clear. And she also conceded that Mr. S. did not claim Kayden as his son when Kayden was born and only began to seek to do so after the failure of the trial discharge. On the other hand, Ms. K. seemed to get very upset during parts of cross-examination and demonstrated significant hostility towards the Agency. She claimed that her efforts to plan for the children were rebuffed at many turns, although she was very vague or unable to remember what specific efforts she made to get [*11]involved. Of course, this area of her testimony was not directly relevant to the issues in the trial anyway.

3. The Agency made diligent efforts in this case.

Based on all of the evidence in the case, I find that the Agency made diligent efforts to encourage and strengthen the parental relationship between the Mr. S. and both children, even while Mr. S. was equivocating as to his parentage of Kayden. Those efforts included repeated and constant referrals for Mr. S. to engage in all the services in his service plan, including domestic violence counseling, parenting skills, random drug testing and substance abuse treatment. Additionally, the Agency set up regularly scheduled visitation for Mr. S. and the children. Indeed, Mr. S. himself detailed in his testimony that the Agency made consistent, repeated efforts to work with him and never inhibited or precluded him from visiting, having access to the children, or engaging in services. In addition, the testimony and case notes make clear that Ms. St. Jean repeatedly encouraged Mr. S. to comply with his service plan and obtain suitable housing and income in order to have the children put into his care, and in fact, despite him not having his own housing or income, they trial discharged Kevin to Mr. S.

Of course, that trial discharge failed after Mr. S. left Kevin alone with Ms. G., despite the Agency making clear that he was not permitted to do so. Interestingly, Mr. S.'s counsel in summation cites the failed trial discharge as evidence of the Agency failing to exercise diligent efforts to return the children to Mr. S.'s care, arguing that the Agency should not have discharged Kevin "to a residence where [the case planner] did not think Mr. S. lived." However, it would be perverse to fault the Agency for crafting a meaningful and safe way to accomplish a trial discharge, notifying all parties about the very specific conditions of that plan, and getting explicit consent from Mr. S. and Ms. K. to abide by those conditions. Given Mr. S.'s long history of failing to obtain stable housing and income on his own — for over two years he either lived with Ms. G. (despite multiple allegations of domestic violence) or had no permanent address or plan to live in a home suitable for the children and with adults cleared by the Agency. Plainly, if Mr. S. was dishonest in his intention to remain living with his mother during the trial discharge, that is not a failing attributable to the Agency.

4. Mr. S. failed to meaningfully plan for the return of the children.

From June of 2011 through late 2012, Mr. S. failed to engage in any of his service plan at all.

It is clear that at some point in mid- to late-2012, Mr. S. began to engage in his service plan, and that by January of 2014, he had completed all of the services asked of him. However, Kevin was placed into foster care on June 14, 2011, and for the entire year following that placement, Mr. S. did not engage in any of his services. The case notes and testimony, including [*12]his own admissions in court, make clear that he was referred to numerous program providers on multiple occasions during that time period. He occasionally began intake or a session of one thing or another, but he never followed through at all. Sometimes he asked for new referrals; sometimes the agency prompted him with new ones of their own. Sometimes he gave reasons why he wanted to delay starting the services; other times he provided no excuse at all. All the while, Kevin was languishing in multiple foster homes, yet Mr. S. failed to even begin to do what he needed to in order to plan for the child, which can on its own constitute permanent neglect under the statute. See In re Michenella I., 74 AD3d 1784 (1st Dept. 2005).

From 2012 until the filing of both TPRs, Mr. S. never obtained appropriate and

suitable housing and income.

Even after Mr. S. eventually began to engage in services and visit regularly, he still needed to provide a suitable and cleared residence in order for the children to be in his care. And for the entire time from when the children entered foster care through the time of the filing of the TPRs in April of 2014, he failed to do so. The failure to maintain appropriate housing is a basis for permanent neglect. See Matter of James Roosevelt H., 261 AD2d 337 (1st Dept. 1999); Matter of Veronica T., 244 AD2d 654 (3rd Dept. 1997); Matter of Merle C., 222 AD2d 1061 (4th Dept. 1995).

At the beginning of Kevin's life, Mr. S. testified that he was living with Ms. G. That relationship was unstable and marred by acrimony and some violence. And Mr. S. admitted that when he learned of Ms. G.'s pregnancy with Kayden, he suspected that she was unfaithful and eventually moved out. He was not clear about the timing of when he left, but by Kayden's birth in May of 2013, Mr. S. was not living with Ms. G. Since that point, Mr. S. has consistently been unwilling or unable to provide a permanent address. He has said at times that he has stayed with friends, lived with a girlfriend, or stayed with his mother, Ms. K. And of course, at one point he spent at least one night in Ms. G.'s home against Agency directives. His dealings with the Agency on this point were frustrating, as he would not provide an address or meaningful clearance information for his girlfriend. Even on the witness stand at trial, he appeared evasive, inconsistent and incredible on this topic.

Nevertheless, in November of 2013, after Kevin had been in foster care for over two years, and when Mr. S. could or would not provide an address of his own, the Agency still devised the trial discharge plan wherein Mr. S. and Kevin could live with Ms. K. But this plan failed because Mr. S. and Kevin did not appear to be living with Ms. K. for the entire time, and they certainly spent at least one night at Ms. G.'s home. Notably, I do not find that this incident, even with Mr. S. having left Kevin alone with Ms. G. for almost an entire day, constitutes permanent neglect on its own, but it is a factor in this decision. C.f., In re Marcus BB., 130 AD3d 1211 (3rd Dept. 2015) (mother permitted father to visit child in violation of court order, resulting in failed trial discharge. But where mother had otherwise addressed underlying concerns of the case, to find permanent neglect would be to "hold respondent to an unreasonable standard and ignore well-settled precedent requiring only evidence of meaningful steps toward amelioration of the original condition, not proof of perfect compliance with petitioner's mandates").

However, even after the failed trial discharge, Mr. S. still failed to establish that he had appropriate housing for the children. He continued to profess that he lived with his mother or with his girlfriend, who at that point was Ms. R. But he would not and did not provide Ms. R.'s address or clearance information to the agency at any point prior to the filing of the TPRs.

For the entire time the children have been in foster care, Mr. S. displayed no effort to obtain suitable housing for himself and his children. He testified that he asked that he be permitted to move into a shelter with the children. But Ms. St. Jean did not recall this conversation, and she was clear that she never told him he would not be able to move into a shelter with the children. Notably, though, given his finances, it is not clear that he would have been eligible for a public shelter or housing placement. In any event, even if the agency could have done more to assist Mr. S. in moving into the shelter system, that does not excuse Mr. S.'s utter failure to plan with respect to housing. See In re Aidan D. 58 AD3d 906 (3rd Dept. 2009) (failure to plan found due to insufficient income and housing); TPR Proceeding Lakeside, etc. v. Conchita J., 10 Misc 3d 1060(A) (Qns. Cty. 2005) (permanent neglect in part due to refusal to provide address).

Finally, with respect to Kayden, Mr. S.'s permanent neglect contains one additional aspect. Ms. St. Jean's uncontroverted testimony, supported by the case notes in evidence, was that from the time Kayden was placed in foster care in May of 2013, until the filing of the TPR in August of 2014, Mr. S. never expressed any real interest in having Kayden in his care. In court, he acknowledged that he had not wanted to identify himself as Kayden's father because he believed that if he did, ACS would have filed a neglect petition against him. In addition, he testified that at times he was not sure if he was Kayden's father. Ultimately, by the time of the trial, Mr. S. did claim to be Kayden's biological father, a fact stipulated to by all parties. But as discussed above, as relevant to establishing himself as a "notice" or "consent" father with respect to Kayden, Mr. S. did not take any steps to establish himself as Kayden's legal parent, thereby entitling to have him in his care. Notwithstanding the Agency's diligent efforts to strengthen the familial relationship between Kayden and Mr. S., Mr. S. deliberately chose to remain a legal stranger to that child. As a matter of pure logic, that constitutes a failure to plan for Kayden's future.

For all of these reasons, I find that the Agency established by clear and convincing evidence that, despite its diligent efforts, Mr. S. failed for multiple one year periods and for more than 15 out of 22 months during Kevin's time in foster care, and for the entire 13-month period from Kayden's placement in care up to the time the petition was filed, to plan for the future of the children within the meaning of SSL §384b-7. Thus, both Kevin and Kayden are permanently neglected within the meaning of that section.

IV. CONCLUSION

Accordingly, I find by clear and convincing evidence that (1) for Kevin, Mr. S. is entitled to notice of adoption proceedings, but his consent is not required for an adoption; (2) for Kayden, Mr. S. is not entitled to notice or consent of any such proceedings; and (3) Mr. S. [*13]permanently neglected both children.

This constitutes the decision and order of the court.

Dated:April 5, 2016ENTERED:

Bronx, New York

_______________________________

HON. ROBERT HETTLEMAN, J.F.C. Footnotes

Footnote 1:The substance of what was told to Ms. St. Jean was hearsay and thus not admitted for its truth. However, as described later, admissible evidence of these same facts came out at the trial.

Footnote 2:See FN 1.

Footnote 3:Notably, the court's computer system reflects that in 2013, Mr. S. did file a paternity petition for Kayden, but that the petition was dismissed. This was never discussed or addressed in any way by any party during the trial, and I have no further information about it.

Footnote 4:DRL §111(1)(d) also sets forth a different standard for a father of a child born out of wedlock where the father has lived with the child for six months within the one year period immediately preceding the placement of the child for adoption. This is inapplicable to Mr. S. because he only lived with Kevin for two months and never lived with Kayden.

Footnote 5:As noted in FN 3, the court's file reflects a paternity petition filed by Mr. S. with respect to Kayden in 2013. However, that claim was dismissed without any finding in his favor. And well after that time period, as noted throughout this opinion, he never accepted or claimed with any certainty that he was Kayden's father.