Documentary Proof Can Establish “Diligent Efforts” and Consent-Based Combined Hearings Upheld in Permanent Neglect Terminations

Introduction

In Matter of Gina P. (Shannon O.), 2025 NY Slip Op 05726 (3d Dept Oct. 16, 2025), the Appellate Division, Third Department, affirmed a Family Court order adjudicating two children to be permanently neglected and terminating the father’s parental rights under Social Services Law § 384-b. The appeal squarely presented two recurrent but consequential issues in termination of parental rights (TPR) litigation:

Whether a petitioner agency can satisfy its burden to demonstrate “diligent efforts” largely through documentary records and judicially noticed prior orders, without live testimony from caseworkers or service providers, consistently with the Sixth Amendment and due process; and
Whether Family Court properly proceeded with a combined fact-finding and dispositional hearing based on the parties’ consent, despite the father’s later attempt to revoke that consent after the close of evidence.

The case arises from long-running child welfare proceedings in Delaware County involving two children born in 2011 and 2017 who entered foster care in 2018 and 2017 respectively. After an amended permanent neglect petition was filed in 2021, Family Court conducted a combined fact-finding and dispositional hearing over three dates (November 2022 through June 2023), ultimately terminating the father’s rights. On appeal, the father principally challenged the evidentiary method by which the Department of Social Services (DSS) proved its diligent efforts and the propriety of the combined hearing procedure.

Summary of the Opinion

The Third Department affirmed, holding:

DSS established by clear and convincing evidence that it made “diligent efforts” to strengthen the parental relationship and ameliorate the barriers to reunification. Importantly, DSS could rely on the father’s testimony, documentary evidence from the agency’s case file and service records, and Family Court’s judicial notice of prior permanency orders to make this showing. The absence of live caseworker or provider testimony did not defeat the proof, nor did it violate the father’s Sixth Amendment confrontation rights or his due process rights, given his opportunity to review the materials, be represented by counsel, object, call witnesses, and offer contrary proof.
Family Court did not err in conducting a combined fact-finding and dispositional hearing under Family Court Act § 625(a), where the parties had expressly consented. The father’s post-proof attempt to “revoke” consent—paired only with a request to submit written argument on disposition—was insufficient to undo the consent, especially because he did not renew any demand for a separate dispositional hearing in his written submissions.
The court also reiterated that, after termination of parental rights under Social Services Law § 384-b, the Appellate Division lacks authority to order post-termination visitation, even where the children express a desire for supervised contact (citing Matter of Hailey ZZ., 19 NY3d 422, 438 [2012]).

The father did not contest Family Court’s findings that he failed to plan for the children’s future despite DSS’s efforts and that termination was in the children’s best interests; the appellate record supported those findings.

Analysis

Precedents Cited and Their Influence

The opinion synthesizes and applies a robust line of Third Department and Court of Appeals authority on permanent neglect, evidentiary sufficiency, and hearing procedure:

Diligent efforts and failure to plan:
- Social Services Law § 384-b(7)(a) defines permanent neglect and sets the dual agency burden: prove diligent efforts and, despite those efforts, the parent’s failure to plan.
- Matter of Carmela D. [Shameeka G.], 232 AD3d 1126 (3d Dept 2024), lv denied 43 NY3d 903 (2025), and Matter of Konner N. [Justin O.], 235 AD3d 1112 (3d Dept 2025), reinforce that “clear and convincing” evidence must show practical, reasonable, and tailored efforts to address the particular issues preventing reunification.
- Matter of Gabriel J. [Christina I.], 232 AD3d 1093 (3d Dept 2024), underscores the modalities of diligent efforts: assisting with visitation, providing updates on the child, and offering appropriate counseling/therapeutic programs.
- Other Third Department decisions—Matter of Nevaeh N. [Heidi O.], 220 AD3d 1070 (3d Dept 2023), and Matter of Zaiden P. [Ashley Q.], 211 AD3d 1348 (3d Dept 2022)—mirror these standards and the tailored-plan requirement.
Documentary proof and judicial notice:
- Matter of Jase M. [Holly N.], 190 AD3d 1238 (3d Dept 2021), sanctioned Family Court’s use of judicial notice of its own prior orders, including permanency orders, as competent evidence—an approach reaffirmed here.
- Matter of Leon RR, 48 NY2d 117, 123 (1979), the Court of Appeals’ foundational due process case in Family Court proceedings, stresses procedural fairness rather than rigid evidence formality. The Third Department cites Leon RR to validate reliance on voluminous records where the parent had notice, counsel, and opportunity to respond.
Confrontation and due process in civil TPR:
- Matter of Ramon F. [Wilson F.], 173 AD3d 1775 (4th Dept 2019), lv denied 34 NY3d 904 (2019), and Matter of Samantha K., 61 AD3d 1322 (3d Dept 2009), hold that the Sixth Amendment Confrontation Clause does not apply in the same manner in civil proceedings like TPR and that documentary evidence can be considered without violating confrontation rights.
- Matter of Guillermo v Agramonte, 137 AD3d 1767 (4th Dept 2016), similarly supports the permissibility of documentary proof in family matters without a confrontation violation.
Combined hearings:
- Family Ct Act § 625(a) explicitly authorizes dispensing with a separate dispositional hearing if all parties consent. The court cites Matter of Maurice Jamel G., 267 AD2d 173 (1st Dept 1999), to confirm that a combined hearing is appropriate upon consent.
- The contrast cases—Matter of Konner N. [Justin O.], 235 AD3d at 1116 and Matter of Harmony F. [William F.], 212 AD3d 1028, 1032-33 (3d Dept 2023)—illustrate circumstances where combined hearings are not appropriate absent consent or where procedural safeguards are lacking. Here, by comparison, consent was clear and not effectively revoked.
Post-termination visitation:
- Matter of Hailey ZZ. [Ricky ZZ.], 19 NY3d 422, 438 (2012), is controlling: once rights are terminated under § 384-b, courts lack authority to order post-termination visitation absent statutory mechanisms (e.g., post-adoption contact agreements). The Third Department also references Matter of Allyana J. [Sophia Y.], 232 AD3d 896, 898 (2d Dept 2024).
Additional diligent-efforts cases reinforcing the result:
- Matter of Harmony F. [William F.], 212 AD3d 1028, 1031 (3d Dept 2023) and Matter of Walter DD. [Walter TT.], 152 AD3d 896, 897-98 (3d Dept 2017), lv denied 30 NY3d 905 (2017), both uphold findings of diligent efforts on records showing extensive services and targeted interventions.

Legal Reasoning

The court’s reasoning proceeds in two principal steps: evidentiary sufficiency and procedural regularity.

1) Diligent efforts proven by clear and convincing evidence without live caseworker testimony

The Third Department stresses that “diligent efforts” are not an abstract checklist but a set of practical, reasonable, and tailored actions designed to confront specific barriers to reunification. The record showed DSS:

Referred the father to sex offender treatment programs and mental health counseling, rooted in his conviction and treatment needs, and to domestic violence and parenting classes;
Facilitated visitation and provided caseworker counseling, repeatedly warning that continued involvement with the children’s mother—who had serious substance use issues—would block reunification;
Assisted with housing and made referrals for drug/alcohol evaluation.

The evidence of these efforts came from three sources: the father’s own testimony acknowledging “a bunch of services,” the underlying agency case file and service records, and Family Court’s judicial notice of prior permanency orders. The combination satisfied the clear-and-convincing standard.

Importantly, the court rejects the father’s legal contention that live testimony from caseworkers or service providers is mandatory to establish diligent efforts. Citing Ramon F., Samantha K., and Guillermo, the court concludes that the use of documentary evidence in a civil TPR proceeding does not implicate the Sixth Amendment right of confrontation and, on this record, did not violate due process.

Due process is safeguarded where the parent:

Had access to the records before the hearing,
Was represented by counsel,
Had the opportunity to object, cross-examine the father (or any witness called), call his own witnesses, and submit his own evidence, and
In fact, did not object to most of the exhibits and chose not to present counterproof or call witnesses.

The court’s reliance on Leon RR underscores that the constitutional question focuses on fairness of process and reliability of proof, not on a rigid evidentiary formality requiring live testimony in every case.

2) Consent-based combined fact-finding and dispositional hearing

Under Family Ct Act § 625(a), Family Court may dispense with a separate dispositional hearing “if all parties consent” and may enter disposition based on competent evidence admitted at fact-finding. Here:

At the outset (November 2022), the father—represented by counsel—expressly consented to a joint fact-finding and dispositional proceeding.
After the close of proof (June 2023), successor counsel announced an intent to “revoke” that consent but requested only leave to submit written argument on disposition. Family Court afforded 30 days for written submissions.
Crucially, in those submissions, the father did not renew a revocation or request a separate dispositional hearing.

On those facts, the Third Department found no error. The court also points to contrast cases where the absence of consent or the need for additional dispositional evidence makes a combined procedure improper. By comparison, here the record showed both consent and sufficient opportunity to present dispositional argument in writing.

3) Post-termination visitation authority

Responding to the attorney for the children’s request for appellate relief providing supervised visitation, the court reiterates a bright-line rule from Hailey ZZ.: where parental rights have been terminated under Social Services Law § 384-b and that disposition stands, the appellate court lacks authority to order post-termination visitation. Wishes of the children, while essential to their permanency planning, cannot enlarge the court’s jurisdiction at this procedural posture.

Impact and Practice Implications

For petitioner agencies (DSS and authorized agencies)

Documentary pathways confirmed: Agencies can meet the “diligent efforts” burden through comprehensive case files, service records, and prior court orders without necessarily presenting live testimony from every caseworker or provider, provided parents have access, counsel, and the opportunity to challenge.
Record-building is paramount: This decision incentivizes meticulous documentation—referrals, attendance logs, case notes, treatment compliance, warnings about safety concerns (e.g., contact with unsafe caregivers), housing assistance records, and permanency reports.
Judicial notice is a powerful tool: Courts can take judicial notice of prior permanency orders, which frequently memorialize service plans, parental progress, and court findings.
Tailoring remains essential: The court evaluates whether the plan was realistic and tailored to the parent’s specific barriers. Stock services are insufficient if not connected to the parent’s actual needs.

For parents and defense counsel

Timely objections matter: Where the agency relies on voluminous records, counsel should make targeted objections (e.g., authenticity, hearsay, foundation) and demand live testimony if cross-examination is essential to test reliability.
Use your opportunity to call witnesses: The court emphasized the father’s failure to present counterproof or call his own witnesses; due process arguments are less persuasive when the parent declines to use available procedural tools.
Protect the record on combined hearings: If consenting to a joint hearing under § 625(a), any revocation should be explicit, timely, and paired with a concrete request for a separate dispositional hearing with identified additional evidence.
Issue selection: On appeal, unchallenged findings (failure to plan; best interests) are effectively conceded. Where those points are viable, they must be preserved and litigated.

For courts

This decision affirms flexible evidentiary management in TPR proceedings, provided procedural fairness is safeguarded. Courts should ensure parents have access to records in advance, ample time to review, and a meaningful chance to object and present their case.
Combined hearings remain an efficiency tool when all parties consent; however, courts should memorialize consent clearly and address any attempted revocations on the record.

Substantive policy implications

The opinion continues a trend toward recognizing documentary records as competent proof in TPR, which may streamline agency presentations but also raises defense concerns regarding the ability to probe caseworker judgments via cross-examination. The decision answers those concerns with process: notice, counsel, opportunity to object and present contrary proof.
The court’s reiteration of the no-post-termination-visitation rule underscores the importance of negotiating post-adoption contact agreements (PACAs) or considering post-termination contact at the dispositional stage, if supported by statute and the child’s best interests.

Complex Concepts Simplified

Permanent neglect: A legal ground for terminating parental rights when a child has been in foster care for at least one year or 15 of the last 22 months, and the parent—despite being capable—has failed to maintain contact with or plan for the child’s future, even though the agency made diligent efforts to help.
Diligent efforts: Concrete, reasonable, and tailored actions by the agency to reunify the family, such as arranging visits, making referrals for treatment or classes, providing updates, and helping with housing—aligned to the parent’s actual barriers.
Clear and convincing evidence: A high civil standard of proof requiring that the evidence makes the claim highly probable, though not to the beyond-a-reasonable-doubt level.
Judicial notice: A court’s use of facts or records (like its own prior orders) without additional proof, when those items are not in reasonable dispute.
Confrontation Clause vs. due process: The Sixth Amendment’s Confrontation Clause applies to criminal prosecutions. In civil TPR proceedings, the constitutional touchstone is due process (fair procedures), not confrontation. Documents can be used if fairness is maintained (notice, counsel, opportunity to object and respond).
Combined fact-finding and dispositional hearing: Under Family Ct Act § 625(a), the court can decide both whether the statutory ground is proven (fact-finding) and what the disposition should be (e.g., termination) in a single combined proceeding, but only if all parties consent.
Post-termination visitation: After rights are terminated under § 384-b, appellate courts cannot order visitation. Future contact typically depends on post-adoption agreements or other statutory mechanisms, not on appellate authority.

Conclusion

Matter of Gina P. (Shannon O.) clarifies and consolidates important aspects of New York’s permanent neglect jurisprudence. First, it confirms that petitioner agencies may establish “diligent efforts” through a combination of the parent’s testimony, documentary service records, and judicially noticed orders, without live caseworker testimony, consistent with due process and without triggering Sixth Amendment confrontation concerns. Second, it reaffirms that consent under Family Ct Act § 625(a) validly authorizes a combined fact-finding and dispositional hearing, and that attempted revocation after the close of proof—especially without a formal request for a separate dispositional hearing—is ineffective. Finally, it reiterates the jurisdictional limit on ordering post-termination visitation at the appellate stage.

Practically, the decision underscores the centrality of thorough, tailored case planning and meticulous documentation by agencies, the necessity of timely and strategic evidentiary objections and witness presentation by parents, and the ongoing importance of clear procedural agreements in Family Court. In the broader legal context, the opinion balances efficiency and reliability in child-protective litigation with constitutional guarantees of procedural fairness, offering a blueprint for how courts can evaluate voluminous documentary records while preserving the integrity of TPR proceedings.

Key Takeaways

Documentary evidence plus judicial notice can, by themselves, satisfy the agency’s “diligent efforts” burden if the parent has fair process.
Confrontation Clause challenges typically fail in civil TPR; the standard is due process—notice, counsel, and opportunity to object and present evidence.
Consent to a combined hearing is binding absent timely, explicit revocation and a request for a separate dispositional hearing supported by identified additional evidence.
Appellate courts cannot order post-termination visitation after § 384-b terminations; such contact must be addressed through statutory mechanisms at disposition or through post-adoption agreements.