Diligent Efforts for Incarcerated Parents: Agency Repeated Attempts and Incarceration-Related Visitation Barriers May Satisfy Social Services Law § 384-b

Decision: Matter of Jonah M. (Davion D.), 2026 NY Slip Op 01905 (App. Div. 4th Dep’t Mar. 27, 2026)
Statute: Social Services Law § 384-b (permanent neglect; “diligent efforts”; termination; adoption)
Disposition: Order terminating father’s parental rights affirmed; two-justice dissent would reverse and dismiss.

1. Introduction

This appeal arose from a Social Services Law § 384-b proceeding in Family Court, Onondaga County, in which the Onondaga County Department of Children and Family Services sought to terminate respondent-father Davion D.’s parental rights to Jonah M. on the ground of permanent neglect and to free the child for adoption. The father challenged the termination primarily on the threshold statutory requirement that the agency prove, by clear and convincing evidence, that it made “diligent efforts” to encourage and strengthen the parental relationship—even though the father was incarcerated for a substantial portion of the relevant period.

The Fourth Department’s majority affirmed, concluding that the agency’s repeated contacts with the correctional facility, attempted arrangements for visitation, facilitation of at least some telephonic contact, monthly updates, and post-release service/visitation arrangements constituted diligent efforts, and that termination (rather than a suspended judgment) was in the child’s best interests. Two justices dissented, describing the agency’s efforts as minimal, error-ridden, and at times obstructive.

2. Summary of the Opinion

Majority holding

  • Diligent efforts proven: The petitioner met its burden under Social Services Law § 384-b (7) (a) to show “diligent efforts” to encourage and strengthen the parental relationship, including efforts tailored to incarceration (contacts with prison staff, attempts to arrange visits, a sought court order for video/telephone visits, updates to father, and a service plan).
  • Incarceration context: The lack of in-person visitation during incarceration was attributed “primarily” to the father’s own behavior leading to special housing restrictions.
  • Best interests and disposition: Termination and freeing the child for adoption had a “sound and substantial basis,” and a suspended judgment was not warranted, particularly because the father was reincarcerated by the time of disposition.

Dissent’s position

  • No clear and convincing showing of diligent efforts: The dissent would hold the agency failed the threshold requirement because its efforts during incarceration were “minimal and perfunctory,” and it effectively delayed or failed to implement court-directed contact.
  • Agency conduct hindered the relationship: The dissent emphasized alleged administrative failures (form letters, incorrect letters, failure to pursue available monthly calls without an order, and “waiting” for counsel to draft an order) as evidence the agency did not make “affirmative, repeated, and meaningful efforts.”
  • Remedy: Reverse and dismiss the termination petition.

3. Analysis

3.1. Precedents Cited

The decision is best read as an application—and an internal stress-test—of New York’s permanent-neglect framework to incarcerated-parent cases. The majority and dissent draw from overlapping precedent but diverge on how demanding the “diligent efforts” showing must be on this record.

  • Matter of Kemari W. [Jessica J.], 153 AD3d 1667 (4th Dept 2017), lv denied 30 NY3d 909 (2018): Cited by the majority for the proposition that the agency must prove diligent efforts by clear and convincing evidence. It functions as a Fourth Department anchor for the threshold requirement under Social Services Law § 384-b (7) (a).
  • Matter of K.Y.Z. [W.Z.], — NY3d —, 2025 NY Slip Op 05781 (2025): Both the majority and dissent cite this then-recent Court of Appeals authority.
    • The majority uses Matter of K.Y.Z. [W.Z.] chiefly for the two-part burden structure: petitioner must prove (1) diligent efforts and (2) parental failure to plan.
    • The dissent uses it for the constitutional gravity of termination and the “demanding” clear-and-convincing standard, quoting its reliance on Santosky v Kramer.
  • Matter of Jack V. [Jack U.], 243 AD3d 1174 (3d Dept 2025): Cited for the standard articulation that, in a permanent neglect proceeding, petitioner must prove diligent efforts and failure to plan, emphasizing the sequential nature of the inquiry.
  • Matter of Whytnei B. [Jeffrey B.], 77 AD3d 1340 (4th Dept 2010): Provides a frequently cited definition of diligent efforts and illustrative examples (counseling, visitation scheduling, services to overcome barriers, progress updates). The majority also quotes the companion principle: petitioner need not guarantee parental success; the parent must show initiative.
  • Matter of Caidence M. [Francis W.M.], 162 AD3d 1539 (4th Dept 2018), lv denied 32 NY3d 905 (2018): Central to the incarceration discussion. It recognizes incarceration does not eliminate the agency’s duty, but that incarceration creates impediments and the agency may satisfy diligent efforts by: apprising the parent of the child’s well-being, developing a service plan, investigating relative placements, responding to inquiries, and facilitating telephone contact. The majority treats this as the operative blueprint and finds it met.
  • Matter of Callie H. [Taleena W.], 170 AD3d 1612 (4th Dept 2019), lv denied 35 NY3d 905 (2020): Cited alongside Matter of Caidence M. [Francis W.M.] to reinforce that incarceration modifies logistics but not the legal duty.
  • Matter of Ty ' Keith R., 45 AD3d 1397 (4th Dept 2007), lv denied 10 NY3d 701 (2008): Used by the majority to support attributing visitation barriers to the incarcerated parent’s own conduct and resulting restrictions, undercutting the claim that the agency’s efforts were inadequate simply because visits did not occur.
  • Matter of Jaxon S. [Jason S.], 170 AD3d 1687 (4th Dept 2019): Cited for deference to Family Court’s finding where the record shows “affirmative, repeated and meaningful efforts.”
  • Matter of Hailey ZZ. [Ricky ZZ.], 19 NY3d 422 (2012): Invoked “generally” to support the majority’s conclusion that the diligent-efforts finding should stand; it reflects Court of Appeals guidance on reviewing diligent-efforts determinations and the overall permanency framework.
  • Matter of Jemma M. [Ashley M.], 237 AD3d 1569 (4th Dept 2025), lv denied 44 NY3d 908 (2025): Cited on dispositional best interests and the “sound and substantial basis” review standard for termination as the permanency outcome.
  • Matter of Aubree R. [Natasha B.], 217 AD3d 1565 (4th Dept 2023), lv denied 40 NY3d 905 (2023): Supports denial of a suspended judgment, particularly where circumstances (such as reincarceration) make additional time unlikely to serve permanency or the child’s welfare.
  • Santosky v Kramer, 455 US 745 (1982): Quoted via Matter of K.Y.Z. [W.Z.] by the dissent to emphasize the constitutional dimension of termination and the requirement of clear and convincing proof.
  • Matter of Sheila G., 61 NY2d 368 (1984): Used by the dissent to argue that a parent’s compliance cannot be “meaningfully measured” if the agency has not first undertaken diligent efforts, and to frame the required efforts as “affirmative, repeated, and meaningful.”

3.2. Legal Reasoning

A. The statutory structure: two gates before termination

Social Services Law § 384-b (7) (a) defines “permanently neglected child” as one in agency care whose parent, despite being physically and financially able, fails for the requisite time period to “plan for the future of the child,” notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship. The case thus turns on the first gate: whether the agency satisfied “diligent efforts.”

B. Majority’s application: “reasonable attempts” tailored to incarceration, plus parent responsibility

The majority applies the statutory definition in § 384-b (7) (f), emphasizing that diligent efforts mean “reasonable attempts” to assist, develop, and encourage a meaningful relationship. In incarceration circumstances, it relies on Matter of Caidence M. [Francis W.M.] and Matter of Callie H. [Taleena W.] to identify what diligence can look like when in-person access is constrained.

On this record, the majority treats the agency’s efforts as cumulative and “meaningful,” highlighting:

  • contacting the correctional facility to determine visitation procedures;
  • repeated inquiries about visitation opportunities and attempts to find relatives to facilitate visits;
  • seeking a court order for video/telephone visits;
  • responding to the father’s inquiries and setting up at least one telephone visit after the father returned to general population;
  • developing a service plan (substance abuse, mental health, parenting, anger management) and communicating expectations and court dates;
  • post-release efforts: service referrals, a bus pass (declined), and biweekly in-person visits.

A crucial move in the majority’s reasoning is causation: it characterizes the lack of in-person visits during incarceration as attributable “primarily” to the father’s own behavior resulting in special housing restrictions, invoking Matter of Ty ' Keith R. In other words, where the agency demonstrates active pursuit of feasible avenues, the parent’s conduct-based inaccessibility can weigh strongly against a claim that the agency’s efforts were legally insufficient.

The majority also leans on the principle from Matter of Whytnei B. [Jeffrey B.] that the agency need not ensure success; the parent must show initiative. That theme echoes later at disposition: parole violation and reincarceration support the conclusion that additional time (e.g., a suspended judgment) is not warranted.

C. Dissent’s application: diligence is “demanding,” and “waiting” is not an affirmative effort

The dissent reframes the same timeline as proof of an absence of affirmative agency work during the key months of incarceration. Its reasoning is grounded in two propositions:

  • Constitutional caution: Termination implicates fundamental rights; thus, the clear-and-convincing requirement is a deliberate protection against wrongful severance, as emphasized in Matter of K.Y.Z. [W.Z.] (quoting Santosky v Kramer).
  • Sequence matters: Under Matter of Sheila G., a parent’s planning failures should not be assessed harshly where the agency itself did not first make the required “affirmative, repeated, and meaningful efforts.”

Factually, the dissent highlights alleged systemic shortcomings:

  • near-identical form letters, missed months, and letters with incorrect recipients/children;
  • failure to investigate what prison services were available to father (and thus failure to encourage participation while incarcerated);
  • only one brief facilitated phone call during incarceration;
  • failure to implement court-directed “bi-monthly phone/video contact,” justified by “waiting” for father’s counsel to draft an order;
  • failure to use the correctional facility’s allowance of monthly calls without an order, resulting in no contact from August to December 2022.

Under the dissent’s view, these are not mere imperfections; they are disqualifying because they depict a passive agency posture—administratively convenient “waiting”—rather than active facilitation. The dissent also interprets several letters as showing that the agency was preparing to terminate rights rather than reunify, effectively undermining the statutory purpose of “encourag[ing] and strengthen[ing]” the relationship.

D. Disposition: best interests and suspended judgment

After permanent neglect is established, the court moves to disposition and the child’s best interests. The majority affirms termination as supported by the need for permanency and the father’s lack of a realistic plan, citing Matter of Jemma M. [Ashley M.]. It rejects a suspended judgment, citing Matter of Aubree R. [Natasha B.], and emphasizing father’s reincarceration at the time of disposition—an обстоятельство that undermines the premise that additional time will lead to safe reunification.

3.3. Impact

Practical guidance for agencies and practitioners

Although the opinion does not announce a new statutory test, it meaningfully illustrates how the Fourth Department may evaluate “diligent efforts” in incarceration settings:

  • Documentation and repetition matter: The majority credits “affirmative, repeated and meaningful” steps—ongoing prison inquiries, attempts to obtain authorization for video/telephone contact, and continued updates.
  • Incarceration is not a shield, but is a context: Consistent with Matter of Caidence M. [Francis W.M.], the agency can satisfy diligence through information-sharing, planning, responsiveness, and feasible contact methods even when in-person visits are hard.
  • Parent-caused restrictions can be decisive: The majority’s reliance on the father’s special housing placement suggests that where contact barriers flow from a parent’s misconduct, courts may be more willing to find the agency’s efforts “reasonable” even if contact is limited in outcome.

Why the dissent matters going forward

The dissent functions as a roadmap for challenging agency diligence:

  • It frames “waiting” for counsel or for perfect paperwork as inconsistent with the statutory command of “reasonable attempts,” particularly where some contact (e.g., monthly calls) is available without additional court intervention.
  • It underscores quality control and personalization: inaccurate letters and failure to identify available prison services may support an inference of perfunctory compliance.
  • It leverages Matter of K.Y.Z. [W.Z.] and Matter of Sheila G. to argue that diligence is not a box-checking exercise, but a substantive, parent-specific set of steps that must be proven clearly and convincingly.

Net effect: future litigation may turn less on whether the agency took some actions and more on whether actions were timely, tailored to incarceration realities, and pursued with initiative rather than deflected onto third parties.

4. Complex Concepts Simplified

  • Permanent neglect (Social Services Law § 384-b [7] [a]): A legal status that can justify termination when (1) the child is in authorized agency care for the required period and (2) the parent, though able, fails to plan for the child’s future, despite the agency’s diligent efforts to strengthen the parent-child relationship.
  • Diligent efforts (§ 384-b [7] [f]): “Reasonable attempts” by the agency to help the parent maintain/build a meaningful relationship and overcome barriers to reunification—commonly including visitation arrangements, service referrals, counseling, progress updates, and responsive communication.
  • Clear and convincing evidence: A higher proof standard than “preponderance” and lower than “beyond a reasonable doubt.” It requires highly persuasive proof and is used here because termination implicates fundamental parental rights (as discussed through Santosky v Kramer).
  • Incarceration and diligent efforts: Incarceration does not erase the agency’s duty. But what is “reasonable” may change: updates, service planning, facilitating phone/video contact, and exploring relative placements may be the most feasible steps (see Matter of Caidence M. [Francis W.M.]).
  • Suspended judgment: A dispositional alternative where termination is found but the court delays final termination to give the parent a final opportunity to meet conditions. It is typically denied where the parent’s circumstances show low likelihood of timely reunification (here, reincarceration).

5. Conclusion

Matter of Jonah M. (Davion D.) reinforces a core principle of New York permanent-neglect law: before a parent can be faulted for failing to plan, the agency must prove by clear and convincing evidence that it made diligent, reasonable efforts to encourage and strengthen the parent-child relationship—even when the parent is incarcerated. The majority affirms termination by viewing the agency’s repeated attempts, communications, service planning, and post-release support as sufficient—particularly where visitation limits were driven largely by the father’s incarceration conditions and conduct. The dissent, however, underscores the constitutional stakes and insists that perfunctory communications and passive “waiting” cannot satisfy a “demanding” diligent-efforts standard.

The decision’s broader significance lies in its practical boundary-setting: it signals how the Fourth Department may credit an agency’s documented, repeated attempts in a constrained prison environment, while the dissent spotlights the evidentiary and qualitative vulnerabilities agencies face when efforts appear generic, delayed, or administratively indifferent.