Diligent Efforts for Incarcerated Parents: Reasonable Contact Suffices, but Relative Placement Requires Affirmative Investigation

1. Introduction

In Matter of Aliano E. (Alan E.) (2026 NY Slip Op 03488), the Appellate Division, Third Department affirmed an Ulster County Family Court order adjudicating a child permanently neglected under Social Services Law § 384-b and terminating the father’s parental rights.

The child (born August 2022) entered foster care in September 2022 after removal from the mother due to drug use. The father was incarcerated at the child’s birth. Although he suspected paternity earlier, paternity was formally established in May 2023. The Ulster County Department of Social Services (the agency) filed a permanent neglect/termination petition in January 2024.

The appeal centered on two core issues: (1) whether the agency proved “diligent efforts” to encourage and strengthen the parent-child relationship during the father’s incarceration, and (2) whether the father nonetheless failed to “substantially plan” for the child’s future, justifying a permanent neglect finding and termination (rather than a suspended judgment).

2. Summary of the Opinion

The Third Department held that the agency proved by clear and convincing evidence that it made diligent efforts appropriate to the father’s incarceration and the child’s very young age, including regular written updates and photos, invitations to service plan reviews, exploring video visitation (unavailable at the facility), and arranging telephone contact when requested. The court also agreed that the agency had no obligation to arrange in-person visitation where travel would have required a two-year-old to endure an approximately four-hour trip each way.

Despite those efforts, the court held the father did not substantially plan for the child’s future. His proposal that the child remain in foster care until his release was deemed unrealistic and infeasible, and he failed to timely identify a suitable temporary custodian or present concrete post-release housing and employment arrangements.

At disposition, the court concluded termination—rather than a suspended judgment—served the child’s best interests given the child’s integration into a stable pre-adoptive foster home and the father’s continued lack of a feasible reunification plan.

3. Analysis

A. Precedents Cited

  • Matter of Jack V. [Jack U.]: Cited for the statutory framing of permanent neglect and the appellate deference accorded to Family Court’s factual findings. It also supports the principle that a child’s prolonged foster care placement is disfavored and that permanency considerations weigh heavily when a parent’s plan is to “wait out” incarceration.
  • Matter of Gina P. [Shannon O.]: Used for the two-part burden in permanent neglect proceedings—(1) diligent efforts by the agency and (2) failure by the parent to plan— both proven by clear and convincing evidence.
  • Matter of Kaylee JJ. [Jennifer KK.]: Supplies the working definition of “diligent efforts” as “practical and reasonable” actions designed to address barriers to reunification and strengthen family ties.
  • Matter of Jace N. [Jessica N.]: The central incarceration-guidance precedent. It is relied on both for examples of how agencies may satisfy diligent efforts for incarcerated parents (updates, service plans, investigating relative placements, facilitating calls) and for the best-interests framework at disposition (including the availability, but not presumption, of a suspended judgment).
  • Matter of Brielle UU. [Brandon UU.]: Cited for two points: (1) procedural appellate limits (no appeal as of right from nondispositional orders in permanent neglect proceedings), and (2) substantive reinforcement that prolonged foster care is not in a child’s best interests when assessing a parent’s “plan.”
  • Matter of Duane FF. [Harley GG.] and Matter of Walter DD. [Walter TT.]: Support the conclusion that the agency’s efforts can be diligent despite practical limits on in-person visitation, and provide the “meaningful steps” standard for substantial planning.
  • Matter of Timothy GG. [Meriah GG.]: Anchors the statutory requirement that a plan must be “realistic and feasible,” and that “good faith” alone is not determinative.
  • Matter of Hailey ZZ. [Ricky ZZ.] (Court of Appeals): Used to underscore that extended foster care is not a viable plan and that the parent must timely take concrete steps toward a workable permanency solution.
  • Matter of Ronaldo D. [Jose C.]: Supports affirmance of termination (as opposed to suspended judgment) where permanency needs and the parent’s lack of readiness favor adoption.
  • Matter of Carrie ZZ. v Aaron YY.: Cited on the technical sufficiency of the notice of appeal and proper identification of the dispositive order.

B. Legal Reasoning

1) Diligent efforts in the incarceration context.
Applying Social Services Law § 384-b (7) (a), the court treated “diligent efforts” as a practical inquiry—what was reasonable given the father’s incarceration, the distance to the correctional facility, and the child’s developmental stage. The agency’s repeated letters, photos, and well-being updates, its inclusion of the father in service plan reviews, its exploration of video visitation, and its eventual facilitation of telephone contact were deemed sufficient efforts “designed to” strengthen the relationship.

Importantly, the court accepted that geography and the child’s age could eliminate any obligation to arrange in-person visits: requiring a toddler to travel long distances for prison visitation was treated as an unreasonable burden, and the child’s inability to read or meaningfully engage by phone narrowed what “relationship-building” could realistically look like during infancy and early toddlerhood.

2) A cautionary note: investigating relative placement requires affirmative action.
In Footnote 3, the court pointedly observed that the hearing record revealed an agency “practice of passively awaiting contact from custodial resources,” and it contrasted that with the requirement—recognized in Matter of Jace N. [Jessica N.]—that diligent efforts may include “investigating possible placement” with relatives suggested by the incarcerated parent. The court emphasized that “investigating” contemplates affirmative action, not simply waiting for a potential resource to initiate contact.

Although the father’s own failures (e.g., missing or late contact information and dubious suitability of suggested custodians) prevented that critique from changing the outcome, the footnote signals a stricter understanding of what “investigation” should entail in future cases.

3) Failure to substantially plan.
Once diligent efforts were established, the focus shifted to whether the father “substantially planned” for the child’s future. The court applied the principle that the plan must be realistic, feasible, and consist of meaningful steps, not mere intentions. The father’s proposal—keeping the child in foster care until his release—was deemed inherently deficient because it prolongs foster care without a permanency pathway. The father’s inability to timely identify and support evaluation of a viable temporary custodian, coupled with vague post-release housing and employment plans, supported the permanent neglect finding.

4) Best interests at disposition; no presumption of reunification.
At the dispositional phase, the court reiterated that the child’s best interests control, that reunification is not presumed to be best, and that a suspended judgment is discretionary and appropriate only where additional time is likely to lead to parental fitness without undermining permanency. The child’s long-standing, stable, pre-adoptive foster placement—meeting medical and developmental needs, providing family integration, and offering adoption—outweighed the father’s continued lack of a workable plan.

C. Impact

  • Clarifies “reasonable” diligent efforts for incarcerated parents of very young children. Agencies can satisfy diligent efforts through consistent written communication, service planning inclusion, exploring available technology, and facilitating calls—while being excused from burdensome in-person visitation where distance and the child’s age make visits impractical.
  • Rejects “foster care until release” as a viable permanency plan. The decision reinforces that incarceration does not suspend permanency timelines; a parent must propose a feasible alternative (often a vetted temporary custodian) and take concrete steps toward stability.
  • Signals heightened scrutiny of passive relative-placement practices. Footnote 3 may be cited by parents and attorneys for children to argue that agencies must affirmatively pursue leads—especially where the agency has usable contact information—rather than waiting for relatives to self-initiate. This could influence how “diligent efforts” are litigated even where other efforts (letters/calls) are robust.
  • Strengthens the dispositional emphasis on permanency after extended foster care. The opinion supports termination (over suspended judgment) where the child is thriving in a stable pre-adoptive home and the parent’s projected readiness remains uncertain.

4. Complex Concepts Simplified

  • Permanent neglect (Social Services Law § 384-b [7]). A legal finding that, for the required statutory period, a parent did not make adequate plans for a child in foster care, despite the agency’s diligent efforts to help.
  • Diligent efforts. Reasonable, practical actions by the agency aimed at strengthening the relationship and addressing barriers to reunification; what is “diligent” depends on real-world constraints (incarceration, distance, child’s age).
  • Substantially plan. Not simply expressing love or intent—rather, taking concrete, feasible steps toward a safe and stable arrangement for the child (housing, caretaking plan, and other necessities).
  • Suspended judgment. A dispositional alternative where termination is delayed to give a parent more time to demonstrate fitness; it is not automatic and must serve the child’s best interests.
  • Clear and convincing evidence. A heightened proof standard—more demanding than “preponderance,” less than “beyond a reasonable doubt.”

5. Conclusion

Matter of Aliano E. (Alan E.) reaffirms that, in permanent neglect cases involving incarcerated parents, “diligent efforts” are judged by practicality: consistent updates, service planning, and feasible communication may suffice, and agencies are not required to arrange onerous in-person visitation for toddlers over great distances. The decision also underscores that a parent cannot “plan” by proposing continued foster care until release; permanency requires feasible, concrete steps and timely identification of viable custodial options.

At the same time, the court’s Footnote 3 provides an important doctrinal cue: investigating relative placements is an affirmative obligation, not a passive posture. Future litigation may use that guidance to test the sufficiency of agency efforts where relative resources are known but not actively pursued.