In this child protective proceeding, the Administration for Children's Services (hereinafter ACS) has filed a motion seeking relief pursuant to Family Court Act (hereinafter F.C.A.) §1039-b, for an order terminating the agency's obligation to exercise reasonable efforts. After a full hearing on the issue, the court grants the motion.

On March 29, 2013, ACS filed an Article 10 petition against the respondent mother, Dominique A. E., on behalf of the subject child Baby Girl AKA Cashmina A. E. (DOB 3/27/13). The petition alleged that the respondent mother failed to provide adequate guardianship and supervision for the child in that she had previous neglect findings with regards to the subject [*2]child's siblings, Journey and Pamela A., and that the respondent mother's parental rights were terminated as to Journey and Pamela. The petition further alleged that the respondent mother also had a prior finding of neglect with regards to sibling Alicia A. E., that a final order of custody was issued to the non-respondent father with respect to Alicia, and that a termination of parental rights proceeding was pending as to the subject child's sibling, King L. J. AKA King A. ACS alleged that the respondent mother failed to engage in and benefit from services sufficiently to ameliorate the risk to the child's siblings, and as a result, the subject child is neglected or in danger of being neglected. ACS further alleged that the respondent mother failed to provide the subject child with adequate food, clothing, and shelter in that the respondent mother had no provisions for the subject child.

On the date of the filing, the subject child was remanded to ACS and a finding of reasonable efforts was made based on the services that were offered to the respondent mother on the prior cases involving the subject child's siblings. The matter was adjourned for service on the mother. On April 2, 2013, ACS submitted an affidavit of attempted service and new summons personal service was ordered. On April 10, 2013, ACS presented an affidavit of attempted service establishing that three additional attempts were made at personal service on the mother. Substitute service, nail and mail, was authorized at that time and the matter was adjourned to April 19, 2013. On April 19, 2013, an affidavit of service on the respondent mother was submitted. Service was deemed complete and the matter was adjourned for inquest to June 19, 2013. On June 19, 2013, counsel for ACS indicated that the respondent mother was recently incarcerated. The matter was adjourned for August 7, 2013 for the respondent mother to be produced. On or about July 15, 2013, ACS filed a motion for summary judgment and for relief pursuant to F.C.A. §1039-b, terminating the agency's obligation to exercise reasonable efforts.

On August 7, 2013, the respondent mother was produced from jail and made her first appearance in the instant neglect proceeding. The respondent was assigned counsel and counsel was granted an adjournment to submit response papers on ACS' motion. The matter was adjourned to September 24, 2013. The Attorney for the Child submitted an Affirmation in Support of the motion and counsel for the respondent mother submitted an Affirmation in Opposition. In a written decision dated September 24, 2013, the court granted ACS's motion for summary judgment and entered a derivative finding of neglect as to the subject child. See Decision and Order on Motion for Summary Judgment.

On September 24, 2013, the court began a hearing on the F.C.A. §1039-b prong of the motion. ACS presented the termination of parental rights judgment as to the child Pamela A. pursuant to BXXXX/12 as Petitioner's 1; the termination of parental rights judgment as to Journey A. pursuant to BXXXX/12 as Petitioner's 2; and the termination of parental rights judgment as to King L. J. AKA King A. pursuant to BXXXX/12 as Petitioner's 3. The court also took judicial notice of the order of fact finding as to Pamela and Journey pursuant to Dockets NXXXX/09, the Order of Fact Finding and Disposition as to Alicia pursuant to Docket NXXXX/10, an order of custody as to Alicia pursuant to VXXXX/10 and the remand order on the instant Docket NXXXX/12. ACS rested on documentary evidence and the court granted the [*3]respondent mother's counsel's request for an adjournment.

On October 22, 2013, the hearing on the §1039-b motion resumed. The respondent mother testified and offered two documents into evidence: an Osborne Association certificate dated 8/12/13 (Respondent's A) and an Osborne Association letter dated 7/31/13 (Respondent's B). At the conclusion of the hearing, the court heard oral summations. The Attorney for the Child, who initially submitted an Affirmation in Support of ACS's motion, opposed the motion. Decision was reserved on the motion, however the Article 10 proceeding proceeded to disposition. On consent of all parties, the child was placed with ACS until the completion of the next permanency hearing.

Under §1039-b of the Family Court Act, reasonable efforts to make it possible for the child to return safely to his or her home "shall" not be required where the court determines that an enumerated circumstance exists. F.C.A. §1039-b(b)(1-6). One such circumstance is where the parental rights of the parent to a sibling of the child have been involuntarily terminated. F.C.A. §1039-b(b)(6). Matter of Skyler C., 106 AD3d 816 (2nd Dep't 2013) (ACS's motion was properly granted by the Family Court because ACS established prima facie entitlement to relief by submitting the judgments terminating the mother's parental rights with respect to the child's two siblings and the mother failed to raise a triable issue of fact in opposition); Matter of Rayshawn F., 36 AD3d 429 (1st Dep't 2007) (agency properly relieved of obligation to make diligent efforts when mother's parental rights had already been terminated with respect to seven children); Matter of Kyle F., 14 AD3d 822 (3rd Dep't 2005) (Family Court properly granted §1039-b motion where mother's rights were involuntarily terminated to two siblings in New Jersey).

ACS's initial burden of establishing that the mother's parental rights to the three siblings of this subject child were involuntarily terminated was met with the judgments that were submitted. With respect to siblings Pamela and Journey, on July 12, 2012, the court entered findings of permanent neglect against the mother based on her failure for a period of more than one year following the placement of the children in foster care to visit and plan for the future of the children, notwithstanding the agency's diligent efforts. The mother never appeared in those proceedings and the findings were entered on the mother's default. See Petitioner's 1 and 2. With respect to the sibling King, on May 3, 2013, the court entered a finding that the mother abandoned the child by reason of her failure to visit or communicate with the child for a period of six months immediately preceding the filing of the petition. The mother never appeared in that proceeding and the abandonment finding was also entered on the mother's default. See Petitioner's 3.

After ACS established an enumerated circumstance under §1039-b, the burden then shifted to the respondent mother to demonstrate that providing reasonable efforts would be in the best interests of the child, not contrary to the health and safety of the child, and would likely result in the reunification of the parent and the child in the foreseeable future. Matter of Skyler C., 106 AD3d at 818; Matter of Harmony P., 95 AD3d 1608 (3rd Dep't 2012). The respondent [*4]mother's testimony at the hearing was vague and incredible, and she was unable to recall details. She testified that the child was removed from her care from the hospital shortly after she was born. The mother claimed that she and her former foster mother made attempts to call the ACS case worker, Ms. Kim Jeter, 2-3 times per week for the month of March, however she was only able to leave one voicemail because the voicemail box was full. She stated that a few weeks after the birth of the child, she was staying at a friend's home but she did not make any efforts to contact the child through the agency because all of her contact phone numbers for ACS and the foster care agency were left behind at the home of her former foster mother. The mother was then arrested in June of 2013, and then re-arrested on or about July 4, 2013 and incarcerated at Rose M. Singer, where she remained at the time of the hearing on the instant motion.

Respondent's A establishes that the mother completed "3 sessions of the Relationship Work Shop" with the Osborne Association during her incarceration. There is no further information as to what a "Relationship Work Shop" entails. Respondent's B is a letter stating that the Osborne Association "anticipate[s]" servicing the respondent mother while she is incarcerated at Rikers Island through the I-CAN program. It further states that the respondent "will" participate in 8 sessions of "Cognitive Behavioral Therapy Seeking Safety Groups." The letter also states that the Osborne Association can provide aftercare services for the mother in the community once she is released from jail "upon her request." There is no evidence regarding a release date for the mother and the court cannot speculate as to whether the mother might request such services upon her release from jail. The respondent mother acknowledged that she had no contact with the ACS caseworker for several months after the child's birth. The respondent's recent arrests and incarceration are another impediment to reunification with the child, and her belated attempts to participate in programs while incarcerated would not likely result in reunification in the foreseeable future. Based on the record before the court, the court finds that the respondent mother has failed to establish her burden under the statute. Matter of Skyler C., 106 AD3d at 818.

Accordingly, ACS's motion is granted and reasonable efforts to make it possible for the child to return safely home shall no longer be required.

The matter is adjourned for the previously selected permanency hearing date of January 13, 2014, at 2:00pm time certain in part 18.

Dated: November 29, 2013

__________________________________Hon. Lillian Wan, J.F.C