Clarifying “Diligent Efforts” in Permanent Neglect: Agency Need Not Rely on Foster-Parent Transportation; Offering Bus Tickets Suffices — Matter of Ayden G. (Nicky C.)

Introduction

This commentary examines the Appellate Division, Fourth Department’s memorandum decision in Matter of Ayden G. (Nicky C.), 2025 NY Slip Op 04389 (July 25, 2025), affirming a Family Court order terminating the parental rights of the mother (Nicky C.) and father (Justin G.) on the ground of permanent neglect under Social Services Law § 384-b. The case centers on whether the Cayuga County Department of Social Services (DSS) made “diligent efforts” to reunite the family, whether the father adequately planned for the child’s return, the preservation of an evidentiary challenge to the Family Court’s reliance on prior records, and the propriety of denying a suspended judgment at disposition.

Key issues included:

What constitutes “diligent efforts” by the agency—specifically, whether DSS had to permit or rely on foster parents to transport respondents to appointments, and whether providing bus tickets sufficed.
Whether the father, despite agency efforts, failed to “plan” for the child’s return as required by Social Services Law § 384-b(7)(a).
Whether the father preserved a claim that the court improperly considered material not admitted in evidence when delivering a bench decision.
Whether the Family Court could make a dispositional determination without additional evidence where the parties consented to dispense with a separate dispositional hearing.
Whether a suspended judgment was warranted in light of progress (or lack thereof) and the child’s best interests.

Summary of the Judgment

The Fourth Department unanimously affirmed the Family Court’s order terminating both parents’ rights and freeing the child for adoption.

DSS established by clear and convincing evidence that it exercised diligent efforts to strengthen the parental relationship, including referrals to services, transportation assistance via bus tickets, prepaid phone cards, and both supervised and unsupervised visitation.
DSS did not err—and its efforts were not diminished—by instructing foster parents to stop transporting respondents to appointments, given boundary and resource concerns; offering bus tickets was an appropriate, diligent alternative.
Any challenge to the court’s consideration of prior records during its bench decision was unpreserved because no objection was made at the time.
Despite DSS’s efforts, the father failed to adequately plan for the child’s return, as evidenced by unstable housing and employment, inconsistent attendance at medical appointments, failure to benefit from parenting services, and safety concerns during unsupervised visits.
Having expressly consented to proceed to disposition on the fact-finding record without a separate dispositional hearing, respondents could not later fault the court for not eliciting additional dispositional evidence.
A suspended judgment was unwarranted; respondents made only minimal progress, and prolonging the case would not serve the child’s best interests.

Analysis

Precedents Cited and Their Influence

Matter of Zander W. (Lisa M.), 222 AD3d 1395 (4th Dept 2023), lv denied 41 NY3d 909 (2024): Reaffirmed that agencies must prove diligent efforts by clear and convincing evidence. Here, it framed the standard for DSS’s burden under Social Services Law § 384-b(3)(g)(i) and (7)(a).
Matter of Soraya S. (Kathryne T.), 158 AD3d 1305 (4th Dept 2018), lv denied 31 NY3d 908 (2018): Recognized transportation assistance as part of diligent efforts. The Fourth Department analogized DSS’s bus-ticket offer to transportation supports previously deemed adequate, bolstering the conclusion that DSS met its duty.
Matter of Carter H. (Seth H.), 191 AD3d 1359 (4th Dept 2021); Matter of Dante S. (Kathryne T.), 189 AD3d 2148 (4th Dept 2020), lv denied 37 NY3d 901 (2021); Matter of Michael S. (Timothy S.), 159 AD3d 1378 (4th Dept 2018): Each supports the broader proposition that a mix of referrals, communication facilitation, and structured visitation can satisfy diligent efforts.
Matter of Melissa DD., 45 AD3d 1219 (3d Dept 2007), lv denied 10 NY3d 701 (2008); Matter of Aldin H., 39 AD3d 914 (3d Dept 2007): Third Department cases cited to reinforce that an agency’s transportation assistance need not be limitless; reasonable supports (e.g., bus passes) can suffice without obligating foster parents’ personal resources.
Matter of Irene O., 38 NY2d 776 (1975); Matter of Kerensa D. [appeal No. 2], 278 AD2d 878 (4th Dept 2000), lv denied 96 NY2d 707 (2001): Establish appellate deference to Family Court’s credibility determinations, a principle the court used to resolve conflicting testimony about whether transportation help was requested and received.
Matter of Colin R. (Marsha R.), 101 AD3d 1430 (3d Dept 2012), lv denied 20 NY3d 862 (2013); Matter of Cyle F. (Alexander F.), 155 AD3d 1626 (4th Dept 2017), lv denied 30 NY3d 911 (2018): Preservation doctrine—failure to object to the court’s use of non-admitted material forfeits appellate review. This disposed of the father’s evidentiary complaint about the bench decision referencing prior records.
Matter of Steven D., Jr. (Steven D., Sr.), 188 AD3d 1770 (4th Dept 2020), lv denied 36 NY3d 908 (2021): Clarifies that “failure to plan” may be found despite partial participation in services if the parent does not internalize or translate services into safe parenting. The Fourth Department relied on this to find permanent neglect.
Matter of Rasyn W., 254 AD2d 827 (4th Dept 1998): Even partial compliance does not suffice where core impediments remain unaddressed. Cited to show that inconsistent, superficial efforts are inadequate.
Matter of Dileina M.F. (Rosa F.), 88 AD3d 998 (2d Dept 2011), lv denied 18 NY3d 804 (2012): Supports considering unstable employment, arrears, and housing instability as evidence of failure to plan.
Matter of Jaileen X.M. (Annette M.), 111 AD3d 502 (1st Dept 2013), lv denied 22 NY3d 859 (2014); Matter of Ashley R. (Latarsha R.), 103 AD3d 573 (1st Dept 2013), lv denied 21 NY3d 857 (2013): Address a parent’s failure to benefit from services and safety concerns arising during visitation, including injuries to children—both applied here to show lack of improvement and inadequate supervision.
Matter of Danaryee B. (Erica T.), 151 AD3d 1765 (4th Dept 2017); Matter of Jessica FF., 232 AD2d 891 (3d Dept 1996): Under Family Ct Act § 625(a), parties can consent to forego a separate dispositional hearing; disposition may rest on evidence adduced at fact-finding. This rebuts the father’s claim that more dispositional evidence was required.
Matter of Michael B., 80 NY2d 299 (1992): Defines suspended judgment as a short, rehabilitative grace period, appropriate only where warranted by the parent’s progress and the child’s best interests.
Matter of Matthew S., Jr. (Matthew S.), 169 AD3d 1456 (4th Dept 2019); Family Ct Act § 631: Suspended judgments must be grounded solely in the child’s best interests and are reserved for parents who clearly demonstrate readiness for reunification within a short window.
Matter of James P. (Tiffany H.), 148 AD3d 1526 (4th Dept 2017), lv denied 29 NY3d 908 (2017); Matter of Alyshia M.R., 53 AD3d 1060 (4th Dept 2008), lv denied 11 NY3d 707 (2008): Emphasize that minimal progress does not justify prolonging a child’s unsettled status; appellate deference to the Family Court’s best-interests assessment.

Legal Reasoning

Diligent efforts proven by clear and convincing evidence. DSS’s actions—referrals to mental health and parenting classes, bus tickets for appointments, prepaid phone cards, and structured visitation—satisfied Social Services Law § 384-b(7)(a). Crucially, the court clarified that the agency need not permit or depend on foster parents’ personal resources (like providing rides); drawing appropriate boundaries while supplying alternative transportation (bus tickets) is consistent with diligent efforts. The court credited the caseworker’s testimony over respondents’ contrary claims, invoking deference to Family Court credibility findings.
Preservation bars evidentiary challenge. The father argued the court improperly considered prior, non-admitted records in its bench decision. Without a contemporaneous objection, the claim was unpreserved, foreclosing appellate review. This reinforces the stringent preservation rule even in Family Court’s often informal settings.
Failure to plan despite services. The court found that, although the father engaged in some services, he did not make consistent, meaningful progress. Persistent instability—unemployment, $6,000 rent arrears, inconsistent medical appointment attendance—and inability to ensure safe unsupervised visitation (behavioral deterioration in the child; bruising to the half-sibling with implausible explanations) evidenced a lack of benefit from services and insufficient insight. Under § 384-b(7)(a) and the cited precedents, this amounts to failure to plan.
Disposition based on fact-finding record by consent. Family Ct Act § 625(a) allows the court to “dispense with the dispositional hearing and make an order of disposition on the basis of competent evidence admitted at the fact-finding hearing” where the parties consent. Because respondents agreed, the court had no obligation to solicit additional dispositional evidence.
Suspended judgment denied in the child’s best interests. Given minimal progress and ongoing safety, transportation, and housing/financial issues, the court concluded that another grace period would not likely change outcomes sufficiently to permit reunification. Under Michael B., Matthew S., Jr., and Family Ct Act § 631, that determination hinged on the child’s best interests and warrants deference.

Impact and Practical Implications

Transportation assistance clarified. This decision is a useful marker for agencies: diligent efforts do not require leveraging foster parents’ personal resources, particularly where boundary issues or resource imbalances would be created. Offering bus passes/tickets is an appropriate, reasonable modality of transportation assistance. Expect agencies and courts to rely on this when parents argue that greater, more individualized transport (e.g., door-to-door by foster parents) is required.
Boundaries in foster care roles. The ruling underscores a professional boundary between foster parents and respondents. Agencies may instruct foster parents to refrain from providing certain supports directly to respondents, while the agency supplies alternatives. This protects foster families from undue burden or role confusion, and preserves agency oversight.
Preservation rigor in Family Court. Defense counsel must object promptly to any perceived reliance on extra-record materials—even during bench decisions—or risk forfeiture. The informality of family proceedings does not relax preservation requirements on appeal.
“Benefit from services” standard remains exacting. Participation is not enough. Appellate courts continue to look for demonstrated insight, behavioral change, and safe parenting in practice—especially during less restrictive visitation. Documented incidents (e.g., injuries, behavior deterioration) will weigh heavily against parents.
Strategic consideration of dispositional hearing waivers. Consenting to proceed on the fact-finding record can simplify and expedite the case but forecloses arguments that the court lacked dispositional evidence. Counsel should weigh whether additional dispositional proof could materially improve best-interests arguments (e.g., updated housing or employment status) before waiving.
Narrow runway for suspended judgments. The decision reinforces that suspended judgments are reserved for cases showing substantial progress and a realistic prospect of safe reunification in a short period. Minimal or inconsistent gains will not justify prolonging a child’s uncertainty.

Complex Concepts Simplified

Permanent neglect (SSL § 384-b). A legal ground for terminating parental rights where, despite the agency’s “diligent efforts” to help, a parent fails for at least one year to maintain contact with or plan for the child’s future. Proof must be clear and convincing.
Diligent efforts. Reasonable, practical steps by the agency to help the parent address issues that led to removal (e.g., service referrals, transportation assistance, communication support, visitation). It’s not limitless; the agency need not provide the precise modality preferred by the parent or rely on foster parents’ personal resources.
Failure to plan. Even if a parent attends some services, they fail to plan if they don’t translate services into safe parenting—e.g., by securing stable housing and employment, consistently attending critical appointments, demonstrating insight, and conducting safe visits.
Clear and convincing evidence. A high standard of proof requiring that the claim be highly probable, though not beyond a reasonable doubt.
Fact-finding vs. disposition. Family Court cases proceed in two phases. Fact-finding determines whether a statutory ground (like permanent neglect) is proven. Disposition decides what outcome serves the child’s best interests (e.g., termination, suspended judgment). Parties may consent to base disposition on the fact-finding record without a separate hearing.
Suspended judgment. A short, strictly supervised period (often up to one year) giving a parent a final opportunity to remedy issues. Granted only when clearly in the child’s best interests and where significant progress suggests reunification is realistic.
Preservation of error. To raise an issue on appeal, a party must object in the trial court when the issue arises. Failure to object typically waives the issue.
Appellate deference to credibility findings. Appellate courts typically defer to the trial judge’s assessment of witness credibility because the trial judge observes demeanor and testimony firsthand.

Conclusion

Matter of Ayden G. (Nicky C.) adds a practical and important clarification to New York’s permanent neglect jurisprudence: agencies meet their “diligent efforts” obligation without relying on foster parents’ personal resources, and providing bus tickets is an adequate form of transportation assistance when appropriately offered and documented. The decision also reinforces core principles—strict preservation of evidentiary objections, the requirement that parents not only participate in but benefit from services, the propriety of proceeding to disposition on the fact-finding record by consent, and the limited, best-interests-driven availability of suspended judgments.

For agencies, the case validates setting professional boundaries while providing reasonable supports. For parents and their counsel, it highlights the need for concrete, safety-focused improvements and vigilant trial practice to preserve appellate issues. Ultimately, the decision aligns with a child-centered approach: diligent reunification efforts are required, but when those efforts do not translate into safe, stable parenting, termination in the child’s best interests will be sustained.