G., LASHAWNDA, MTR. OF ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
160
CAF 11-00162
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, GORSKI, AND MARTOCHE, JJ.
IN THE MATTER OF LASHAWNDA G.
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MONROE COUNTY DEPARTMENT OF HUMAN SERVICES, MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;
SHAWN G., RESPONDENT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR RESPONDENT-APPELLANT.
DAVID VAN VARICK, COUNTY ATTORNEY, ROCHESTER (ROBIN UNWIN OF COUNSEL),
FOR PETITIONER-RESPONDENT.
LISA J. MASLOW, ATTORNEY FOR THE CHILD, ROCHESTER, FOR LASHAWNDA G.
Appeal from an order of the Family Court, Monroe County (John J.
Rivoli, J.), entered December 21, 2010 in a proceeding pursuant to
Social Services Law § 384-b. The order, among other things,
terminated respondent’s parental rights and denied respondent
post-termination visitation with the subject child.
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.
Contrary to the father’s contention, Family Court did not err in
denying his request for post-termination visitation. It is well
settled that a parent seeking post-termination visitation must
“establish that such contact would be in the best interests of the
child[ ]” (Matter of Andrea E., 72 AD3d 1617, 1618, lv denied 15 NY3d
703 [internal quotation marks omitted]; see Matter of Sean H., 74 AD3d
1837, 1838, lv denied 15 NY3d 708; Matter of Malashia B., 71 AD3d
1493, 1495, lv denied 15 NY3d 701). The record establishes that the
court reviewed the relevant factors before determining that post-
termination visitation was not in the child’s best interests (see
Matter of Kahlil S., 35 AD3d 1164, 1166, lv dismissed 8 NY3d 977).
The evidence presented at the hearing established that the father was
serving a 50-year to life sentence in state prison, and he admitted
that he had a single unsupervised visit with the child in the 18
months preceding the filing of the instant petition. His only other
visitation during that period and the pendency of these proceedings
occurred when petitioner’s employees brought the child for supervised
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CAF 11-00162
visitation with the father in jail or in prison. In addition, the
child has severe mental challenges and becomes agitated while
traveling to the prison. Furthermore, the child has never resided
with the father. “We thus conclude that [the father] ‘failed to
establish that such [post-termination] contact would be in the best
interests of the child[ ]’ ” (Malashia B., 71 AD3d at 1495).
The father further contends that the order erroneously fails to
include the court’s recommendation that he receive yearly photographs
of the child from her foster or adoptive parents. We note, however,
that the court expressly noted that its recommendation was not binding
on petitioner or any foster or adoptive parents. “The role of the
judiciary is to give the rule or sentence . . ., and thus the courts
may not issue judicial decisions that can have no immediate effect and
may never resolve anything” (Cuomo v Long Is. Light. Co., 71 NY2d 349,
354 [internal quotation marks omitted]; see generally New York Pub.
Interest Research Group v Carey, 42 NY2d 527, 529-531). Consequently,
such a mere “recommendation” would not properly be included in an
order. In any event, there is no dispute that the recommendation has
in fact been communicated to the child’s foster parents.
Entered: January 31, 2012 Frances E. Cafarell
Clerk of the Court