Most of my abuse/neglect cases are in Massachusetts and Massachusetts incorporates the Adoption and Safe Families Act (ASFA) language directly into G.L. c. 119 §§ 1, 29C, and 26. Courts regularly repeat that DCF must make “reasonable efforts”—not “diligent” or “extraordinary” efforts—before removal or during reunification efforts.
New York made the requirement stricter as indicated in this recent case Matter of K.Y.Z. (W.Z.), 2025 NY Slip Op 05781, Decided on October 21, 2025, NY Court of Appeals:
"RIVERA, J.
A parent's right to the custody and care of their child is "perhaps
the oldest of the fundamental liberty interests" protected by the
Constitution (Troxel v Granville, 530 US 57, 65 [2000]). The Legislature has thus recognized that "parents are entitled to bring up
their own children unless the best interests of the child would be
thereby endangered" (Social Services Law § 384-b [1] [a] [ii]). To
protect the rights of parents and the health and safety of children, the
Legislature has declared that "the state's first obligation is to help
the family with services to prevent its break-up or to reunite it if the
child has already left home" (id. § 384-b [1] [a] [iii]).
Accordingly, for a child services agency to prevail in a proceeding to
permanently terminate parental rights, it must establish by clear and
convincing evidence that it undertook "diligent efforts to encourage and
strengthen the parental relationship" or that such efforts would have
been "detrimental to the best interests of the child" (id. § 384-b [7] [a]; see [*2]also Santosky v Kramer,
455 US 745, 769 [1982]). A child services agency has the burden to
submit sufficient proof on the record that, if credited, demonstrates
under the applicable clear and convincing evidence standard that it made
"affirmative, repeated, and meaningful efforts to assist the parent in
overcoming [particular obstacles]" to reunification (Matter of Sheila G., 61 NY2d 368, 385 [1984]).
The record below demonstrates that the child services agency failed
to present evidence of diligent efforts to help reunite father and his
child before it petitioned to terminate father's parental rights. First,
the agency failed to adequately accommodate and account for father's
linguistic needs. Father does not speak or understand English, but the
agency never provided interpretive services during family visits, which
were the most significant interactions between father, the child, the
agency caseworker, and the child's foster parents. The agency also
failed to provide interpretation services at the child's medical
appointments or even give father advance notice of when those
appointments were scheduled, precluding him from taking part in that
critical aspect of his child's care. Second, despite the child services
agency's belief that father's lack of insight into mother's mental
health needs and their impact on parenting the child was the weightiest
barrier to reunification, it failed to refer father to individual
counseling or a support group so he could gain that insight. Finally,
although the child services agency identified father's living
arrangements and onerous work schedule as further obstacles to
reunification, it took few steps to help him secure appropriate housing
or employment, which could have made it easier for father to visit his
child.
In short, in this proceeding, rather than foster reunification,
almost all of the child services agency's actions—and its failures to
take action—ensured that the parent-child bond disintegrated. Thus, the
child services agency failed to meet its burden as a matter of law, and
we reverse.
I.
A. The Record Evidence of the Agency's Efforts
Father W.Z. and mother Q.Y.Z. are parents of K.Y.Z., their only
child. One week after the child's birth in 2014, the New York City
Administration for Children's Services (ACS) removed the newborn from
his parents and placed him in foster care with Good Shepherd Services
(the agency), based on ACS's assessment that mother's schizophrenia
rendered her unable to care for him. Thereafter, Family Court found that
the parents neglected the child, and the child entered foster care. In
2017, the agency petitioned to terminate father's and mother's parental
rights on the ground of permanent neglect. During several months between
2019 and 2020, Family Court held a fact-finding hearing where father,
an agency caseworker, and mother's doctor testified, and the agency
submitted several documents from its case file.
According to that evidence, father is a Chinese immigrant whose native and primary language is Fuzhou, a Chinese dialect.[FN1] By his own account, father speaks "average" Mandarin,[FN2]
and only "a few words" [*3]of English. He does not read or write in any
language and therefore cannot communicate other than by spoken word.
The agency caseworker, who was assigned to the case from 2014 to 2017,
testified that the agency placed the child in four different foster
placements during that period, none of which included people who spoke
Fuzhou or Mandarin or shared the family's culture. The child's most
recent
placement was with foster parents who speak English and Spanish.
Since the agency had no staff who spoke Fuzhou or Mandarin, neither the
agency nor the foster parents could communicate with father absent an
interpreter's assistance. There was no record evidence that, by the time
it commenced the termination proceeding, the agency had ever placed the
child in a Fuzhou- or Mandarin-speaking setting to expose him to any
language his parents understood. The only record evidence of the child's
exposure to those languages was when his parents spoke them during
visits.
The caseworker admitted that she was not aware for a full year, until
a court appearance in June 2015, that father's primary language is
Fuzhou, not Mandarin, and she did not testify that she appreciated the
difference between the two. She had usually communicated with father
through a Mandarin interpreter. The caseworker also stated that the
agency wanted father to learn English. Yet, she did not explain why his
doing so was necessary for reunification, and the agency presented no
evidence that it referred father to English language classes or
otherwise assisted him in English language acquisition.
The caseworker further testified that the agency held case planning
conferences twice a year. Between 2014 and 2017, father attended six
such conferences, during which the agency ordinarily provided a Mandarin
interpreter. Not until March 2016 did the caseworker raise with her
supervisor the option of getting a Fuzhou interpreter.
Before 2017, the agency did not provide an interpreter to enable him
to communicate to the child, the caseworker, or the foster parents
during father's visits with the child. Father testified that the
resulting language barrier made him feel like a "dummy." The caseworker
testified that although she supervised the visits, she could not provide
father with contemporaneous feedback. Nor could the caseworker, without
the aid of an interpreter, discuss with father additional services that
would aid reunification. Despite this language barrier, the caseworker
observed father's visits and noted that he brought the child clothes,
toys, and food. The caseworker also described the child as calm and
responsive to father, and father as engaged with his child, during the
visits. Although the agency's records indicate that father sometimes
arrived late or left early from the scheduled two-hour visits, the
agency failed to present evidence of how the caseworker could ask about
father's work schedule without an interpreter. Further, the agency did
not present any evidence of why it had not adjusted the visitation or
even sought to learn why father was not able to stay for full two-hour
visits.
The caseworker further testified that to fulfill the agency's service
plan, she initially scheduled parental visits with the child for twice a
week. However, one month into the child's foster care placement, father
and mother claimed that their demanding work schedules forced them to
ask for less frequent visits. Father testified that he worked in the
restaurant industry, and that an employment agency in Chinatown referred
him to temporary shifts in various restaurants, including in
Massachusetts, Ohio, and Virginia. Many referrals were to restaurants in
"the countryside," where father could earn more money. Father relied on
the employment agency "very often" to find work. While many of his
placements were in other states, father testified that he never
specifically asked for placements within the City and that his typical
practice was to accept "whatever job [the employment agency] had for
[him]." Father traveled by bus to his out-of-state shifts. Mother found
similar work through the same employment agency, but she would sometimes
get fired. [*4]Father claimed that he had to work "more often,"
traveling out of state "[v]ery frequent[ly]" during portions of the
foster placement. Often, father spent only one to five nights in the
City per month. The caseworker testified that she advised father to
visit the child more often and offered to assist with mass transit
costs. Father testified that he explained to the caseworker that he
"needed money, to work and support himself." However, he did not recall
the agency assisting him in searching for local employment, and the
agency presented no evidence of any such efforts, although father
testified that the agency wanted to help mother find work.[FN3]
Father tried to visit the child, despite his work schedule. The
caseworker testified that when the parents' respective work assignments
made joint visitation difficult, father and mother made sure to take
turns so that one parent visited the child every other week. When father
was in the City, he would visit the child once a week. Father also
described his efforts to visit the child when he was working
out-of-state. He testified that he would travel to the City on an
overnight bus, arrive at around 3 am, sleep for a few hours, and visit
the child in the morning. Father would leave the City at around 6 pm
that same day, taking a bus back to his out-of-state work assignment and
often arriving in the middle of the night. Father described these trips
as "very exhausting."
Father testified that he maintained housing in the City. According to
the caseworker, father cooperated with home inspections, even traveling
from out-of-state to avoid delay.
At one point, when the parents were living in a shared apartment with
several people, the agency informed father that he needed to find a
larger apartment to facilitate the child's return home, but father
testified that the agency provided no assistance with finding affordable
housing or guidance on how to navigate the City's shelter system.
Other than at the conferences, there is no record evidence that the
agency gave father feedback or discussed additional services to foster
reunification. Although the caseworker asserted that between conferences
she communicated with father by telephone, she did not testify to the
length or substance of any such conversations.
According to the caseworker, the agency's service plan for father
"was to engage in a parenting class, visitation with [the child], and to
plan for [the child's] return." The agency's "primary concern" was that
father "lacked insight into [mother's] mental health," and that he
"seemed unaware of her illness," because he had stated that she was
"fine," although he understood she was taking medication daily. However,
the caseworker never referred father to services to address his
"insight" into mother's mental illness, such as individual counseling
sessions or a support group. Moreover, although mother's therapist told
father he could attend mother's therapy sessions, mother only
sporadically attended those services herself, and the caseworker did not
testify that the agency took any steps to encourage or assist father's
attendance, such as helping father coordinate the sessions with his work
schedule. Based on the caseworker's testimony, the agency advised
father during biannual conferences that it would not be viable for
mother to be alone with the child upon reunification. In response,
father expressed a willingness to hire someone to watch the child while
he worked. The agency presented no evidence that it helped father search
for a prospective babysitter.
The record evidence demonstrates that the agency took years to
provide father with access to the basic services it deemed part of the
plan for reunification. The caseworker explained that, due to the
difficulty of finding a parenting skills class in Mandarin, it took two
years—until 2016—to find a suitable class. Once enrolled, father
received a certificate of completion. Although the agency determined
that father should attend dyadic therapy with the child,[FN4]
the caseworker did not make a referral until the end of 2016. Father
[*5]then completed an introductory session for services to commence in
January 2017. However, due to issues involving mother, unrelated to any
conduct by father, the sessions did not begin until August 2017, the
same month the agency filed its petition to terminate father's parental
rights.
The caseworker testified that, according to her notes, father was
concerned about his child and requested "to be updated on all medical
and other well-being appointments." Soon after the child's removal,
father met with the agency's educational specialist to discuss, through
an interpreter, referring the child to services from the City's Early
Intervention Program. Father consented to an assessment, and the child
was subsequently diagnosed with global development, speech, and feeding
delays. The child's individual plan recommended occupational and
physical therapy, speech-language therapy when it became appropriate,
special instruction, feeding therapy, and applied behavior analysis
therapy. The agency initially did not inform father about the periodic
meetings—which were held in English—to discuss the child's progress and
potential service changes, although the foster parents and an agency
representative attended. When the caseworker informed father about
specific meetings, father attended, including in 2016 with the child's
teacher and in 2017 for an Early Intervention Program session. The
agency did not arrange for the child's therapists to meet with father or
request that the therapists participate in meetings with father with
the aid of an interpreter. The agency also did not notify father when
the foster parents took the child to various medical appointments.
The agency replaced the caseworker in 2017, shortly before it
commenced termination proceedings. The caseworker testified that father
expressed concern about his ability to communicate with her successor,
as he "want[ed] to be able to express his concerns, ideas, etc. to the
agency case planner and/or supervisor, but the language barrier ma[de]
that difficult." Father explained that he wanted to be reunited with his
child and would work towards that goal, but if that was not possible,
he supported the child's foster mother potentially adopting him.
B. Lower Court Determinations
Family Court concluded that the agency proved by clear and convincing
evidence that mother's mental illness precluded her from appropriately
caring for the child. The court further determined that "the agency's
diligent efforts, although minimal, . . . were reasonable, as required
by statute," and that the agency met its burden of proving that "both
parents . . . permanently neglected [the child]."[FN5] Family Court continued:
"For this Court, the difficulty in making this finding is that the
Court would have liked the agency to do more, to have done more, to have
done better, to have even followed the Court's orders, which to date
they still haven't followed all of them. But nonetheless, the Court does
make a finding that the efforts made were reasonable, although they
could have done more and should have done more . . . [T]he Court simply
found that the agency made minimal efforts required by law and those
efforts were reasonable. And the parents failed to respond accordingly."
To Family Court, the "biggest issue" was "the limited insight of both
parents of [mother's] mental health illness, that sort of then results
in her continued struggle with trying to address that." At a
dispositional hearing that concluded in September 2022, Family Court
found that the child's best interest was "to be freed for adoption."
The Appellate Division affirmed Family Court's order (228 AD3d 560
[1st Dept 2024]). As relevant to father, the Appellate Division held
that "clear and convincing evidence supports the determination that,
despite the agency's diligent efforts, he permanently neglected the
child by failing to consistently maintain contact with or plan for the
future of the child" (id. at 561). It found the agency's
efforts diligent, and that it "adequately addressed the language barrier
by using Mandarin interpreters to communicate with [father] and
referring him for dyadic therapy and a parenting skills class that were
provided in Mandarin, which he understood" (228 AD3d at 561-562, citing Matter of Chelsea C. [Bethania C.],
84 AD3d 504 [1st Dept 2011]). The Appellate Division added that the
agency showed that there was no available foster home in which the
parents spoke Mandarin or Fuzhou, and while the agency "urged [father]
to attend classes to learn English . . . he refused to do so" (id. at
562). It concluded that despite the agency's diligent efforts, father
"visited the child only about once a month before the petition was
filed," and there was no evidence that father "gained insight into his
parental decisions or [mother's] inability to be a caregiver for the
child" (id.).
II.
Parental Rights and the Agency's Burden in a Termination Proceeding
"[T]he interest of parents in the care, custody, and control of their
children is perhaps the oldest of the fundamental liberty interests
recognized by [the United States Supreme Court]" (Troxel 530 US at 65; see also Lassiter v Department of Soc. Servs. of Durham County, N.C.,
452 US 18, 27 [1981] [terminating the parental relationship is a
"unique kind of deprivation"]). The Supreme Court has declared that
"[f]ew forms of state action are both so severe and so irreversible" as
terminating parental rights (Santosky, 455 at 759; see also Matter of Ricky Ralph M.,
56 NY2d 77, 80 [1982] [describing termination of parental rights as
"total and irreversible"] [internal quotation marks omitted]). The
Legislature has found and codified that "the state's first obligation is
to help the family with services to prevent its break-up or to reunite
it if the child has already left home" (Social Services Law § 384-b [1]
[a] [iii]). However, a parent's rights can be terminated where they have
permanently neglected their child (see Sheila G., 61 NY2d at 380). Social Services Law § 384-b (7) (a) defines, in relevant part, a "permanently neglected child" as
"[A] child who is in the care of an authorized agency and whose
parent or custodian has failed for a period of . . . at least one year .
. . following the date such child came into the care of an authorized
agency substantially and continuously or repeatedly to maintain contact
with or plan for the future of the child, although physically and
financially able to do so, notwithstanding the agency's diligent efforts
to encourage and strengthen the parental relationship when such efforts
will not be detrimental to the best interests of the child."
To terminate parental rights on the ground of permanent neglect, a
court must conclude that the petitioning agency established by clear and
convincing evidence that it made "diligent efforts to encourage and
strengthen the parental relationship" (Social Services Law § 384-b [7]
[a]; Sheila G., 61 NY2d at 373). The clear and convincing
evidence standard—the most demanding burden in the civil legal
system—"adequately conveys to the factfinder the level of subjective
certainty about [their] factual conclusions necessary to satisfy due
process" (Santosky, 455 US at 769). Additionally, the agency's
obligation to make diligent efforts reflects that it is in a "superior
position" as compared to the parent (Sheila G., 61 NY2d at 381). As the Court recognized in Sheila G.,
"[t]he parties are by no means dealing on an equal basis. The parent is
by definition saddled with problems: economic, physical, sociological,
psychiatric, or any combination thereof. The agency, in contrast is
vested with expertise, experience, capital, manpower and prestige.
Agency efforts correlative to their superiority [are] obligatory" (id. [internal citations and quotation marks omitted]).
"Diligent efforts" is statutorily defined as
"reasonable attempts by an authorized agency to assist, develop and
encourage a meaningful relationship between the parent and child,
including but not limited to:
(1) consultation and cooperation with the parents in developing a plan for appropriate services to the child and [their] family;
(2) making suitable arrangements for the parents to visit the child . . . ;
(3) provision of services and other assistance to the parents . . .
so that problems preventing the discharge of the child from care may be
resolved or ameliorated;
(4) informing the parents at appropriate intervals of the child's
progress, development and health . . ." (Social Services Law § 384-b [7]
[f]).
In Sheila G., this Court expounded on this threshold
diligent efforts requirement. It explained that an agency "must always
determine the particular problems facing a parent with respect to the
return of [their] child and make affirmative, repeated, and meaningful efforts
to assist the parent in overcoming these handicaps. In evaluating the
over-all efforts undertaken by the agency, the courts should always
refer to the statutory guidelines" (61 NY2d at 385 [emphasis added]). An
agency has not made diligent efforts to reunite the parent and child if
it fails to provide particular services aimed at the barriers to
reunification that it has identified. And, as the Legislature
recognized, "the degree to which a parent has upheld [their] obligations
to [their] children cannot be meaningfully measured when the agency
itself has not undertaken diligent efforts on behalf of reuniting parent
and child" (id.). Indeed, the Sheila G. court cited
research showing that a parent's ability to overcome barriers to
reunification may correlate to the agency's commitment and actions. As
the research found, " 'parents who perceive their child care agency as
unhelpful and as opposing their reunification with their child are less
frequent visitors and are less likely ever to regain custody' " (id. at 382, quoting Marsha Garrison, Why Terminate Parental Rights?,
35 Stanford L Rev 423, 483 [1983]). Thus, the agency's efforts, and the
degree to which they address the family's individual needs and are
designed to help them overcome barriers, "may have a profound practical
effect on what later may be viewed as the success or failure of the
parents' efforts to plan for the future of the child" (id.).
Economic challenges, like those experienced by father, are often the
most difficult to overcome because lack of financial resources may be at
the root of other barriers to reunification. The Supreme Court in Santosky
recognized that parents in termination proceedings "are often poor,"
hindering their efforts to regain custody (455 US at 763). Our Court has
also recognized this obstacle to reunification, as well as an agency's
obligation to take diligent efforts to address poverty and its role in
family separation:
"The Legislature has placed primacy on the right of parents to raise
their children and the desirability of children to be with their natural
parents. Though others may offer more comfort and be better able to
provide for a child than [their] own parents, and though it may be
argued that freeing a child for adoption by a foster family in a given
situation serves the best interests of the child, still the drastic step
of severing parental rights for neglect can only be taken when there
has been compliance with the statute" (Matter of Jamie M., 63 NY2d 388, 394 [1984]).
To be sure, an agency "need not guarantee that parents will no longer be poor or unemployed" (id.).
However, "neither can it, without more, simply impose on impoverished
parents the usual plan, including the requirement, for the return of
their child, that they have a means of support and suitable home" (id.).
To the [*6]extent that a parent's financial circumstances pose a
barrier to reunification, the statutory scheme requires an agency "to
make some attempt to assist parents, with . . . the procurement of
housing and employment where that is necessary in order to help them
overcome" those problems (id. at 395).
Courts must also consider whether the parent has been "utterly unco-operative or indifferent" (Sheila G.,
61 NY2d at 385) and thus undermined the agency's attempts at diligent
efforts. "Parents must themselves assume a measure of initiative and
responsibility," and their failure to utilize "services and material
resources will be taken into account in determining whether parents have
in fact met their statutory responsibility" (Jamie M., 63 NY3d at 393). Absent such recalcitrance by the parent, however, an agency is held to its burden. As the Court explained in Sheila G.:
"[W]hen an agency has assisted a parent through meaningful efforts to
provide counseling with respect to a problem (psychological,
physiological, financial, and the like) that impedes the return of the
child, to assist in planning for the child's future, to aid in the
procurement of housing or employment, and to schedule regular and
meaningful visits with the child, it will be found that the agency has
satisfied its statutory duty" (id. at 384).
Standard of Review
/Para>
The Court "may review findings of fact, reached by the trial court
under the proper evidentiary standard and affirmed by the Appellate
Division, only to determine whether they enjoy support in the record" (Matter of Hailey ZZ., 19 NY3d 422, 430 [2012], citing Matter of Star Leslie W.,
63 NY2d 136, 147 [1984]). However, father's argument that the agency
failed to identify and provide services to address his specific needs to
overcome the barriers to reunification raises a question of law as to
the threshold showing required for an agency to establish diligent
efforts in support of a finding of permanent neglect by clear and
convincing evidence. Proof in the record that the "child-care agency . .
. has satisfied its statutory obligation is a threshold consideration
and a necessary prerequisite to any determination of permanent neglect" (Sheila G., 61 NY2d at 385-386; see also Matter of Michael B.,
58 NY2d 71, 73 [considering the legal issue of whether "the evidence in
th(e) record is legally insufficient to meet the clear and convincing
evidence standard" in a termination of parental rights proceeding]).
These legal standards are well established, and the parties do not
contest them. Instead, they dispute the application of those standards
here, where the father required linguistically and culturally
appropriate services and particular assistance to address the obstacles
to reunification that the agency identified.[FN6]
III.
The Agency Failed to Undertake Diligent Efforts
The record evidence is legally insufficient to support a finding that
the agency met its burden of establishing by clear and convincing
evidence that it undertook diligent efforts to strengthen father's and
the child's relationship. First, the agency did not take adequate steps
to overcome the persistent language barrier between father and the
child, the caseworker, and the foster parents. Most troublingly, the
agency utterly failed to provide interpretation services during father's
visits with his child. This failure meant that father could not
communicate with the caseworker, and consequently, father was unable to
receive feedback or discuss additional services during visits. The lack
of interpretation services during visits also meant that father could
not contemporaneously communicate with the child's foster parents. Even
if the agency could not place the child in a Fuzhou- or
Mandarin-speaking foster home, the record is devoid of proof of any
steps [*7]the agency undertook to help the child learn or be exposed to
his parents' native or spoken languages, outside of hearing his parents
speak during visits. Notably, father expressed discomfort during visits
without interpretation services. He also informed his prior caseworker
that he wanted to communicate with the agency, "but the language barrier
ma[de] that difficult."
Contrary to the dissent's claim, the fact that the child had
developmental and speech delays cannot excuse the agency's failure to
address the language barrier (see dissenting op at 5). Not
exposing the child to Fuzhou or Mandarin meant that, during critical
years for language acquisition, the child had no exposure to either
language. By placing the child in a succession of homes where no one
spoke Fuzhou or Mandarin during the child's early developmental years,
the agency made no efforts to compensate for this obstacle by placing
the child in a Fuzhou- or Mandarin-speaking educational or social
setting. In addition, the agency often failed to notify father of the
child's medical appointments or offer to provide an interpreter, even
though father informed the agency that he was concerned about his child
and requested "to be updated on all medical and other well-being
appointments." Further, the language barrier at visits prevented father
from communicating with his caseworker or the child's foster parents,
repeatedly depriving him of pivotal opportunities to receive feedback
and discuss his service plan. Relegating such opportunities to periodic
conferences was insufficient on this record to support a finding that
the agency made reasonable efforts to address obstacles to father's
reunification with the child.[FN7]
The agency's failures exacerbated the child's disconnection from his
father's culture and language by solidifying the language barrier
between the child, his parents, and the foster parents. The agency's
attempted efforts to accommodate the father's linguistic needs by
providing interpreters in limited contexts did not reasonably support
parent-child bonding. The agency also failed to present evidence why,
after the caseworker learned father's primary language by happenstance
at a court appearance, the caseworker took an entire additional year to
raise with her supervisor the prospect of finding a Fuzhou interpreter
for subsequent conferences. Notably, the agency failed to explain why it
took action that may have violated a state regulation that requires
service agencies to make "reasonable efforts . . . to communicate with
the child and [their] family in their primary language" when providing
services aimed at enabling a child in foster care to "return to [their]
family at an earlier time than would otherwise be possible" (18 NYCRR
423.2 [b]; 423.4 [m] [2]). The agency also failed to present evidence of
why it acted in apparent contradiction to ACS policy, which requires
agency staff to "proactively initiate the conversation about the
individual's/family's preferred language" when working with individuals
who are limited English proficient (Administration for Children's
Services, Language Access Policy, 7 [2021], available at
https://www.nyc.gov/assets/acs/pdf/immigrant_services/2021/LanguageAccessPolicy.pdf
[last accessed Sep. 19, 2025]).
It bears emphasizing that before an agency can seek to terminate a
parent's fundamental right to the custody and care of their child, it
must ensure clear and precise communication so that the parent knows
what they need to do and understands how the agency will assist them.
The statutory, regulatory, and policy mandates assume the same. Here, by
linguistically isolating father from his child and the child's
caretakers, the agency failed to make diligent efforts to strengthen the
parental relationship.
Second, the agency failed to provide father with services that
meaningfully assisted him with overcoming the "primary" barrier to
reunification of father's apparent "lack of insight" into mother's
mental illness, and the additional barrier that father's low-wage
employment made it difficult to visit the child as often as the agency
recommended. The record demonstrates that the agency failed to provide
father with linguistically and culturally appropriate services to
improve his understanding of mother's mental health [*8]needs, or to
help him learn how to care for his child in a household with a mother
with schizophrenia. The agency did not refer father to individual
therapy sessions or support groups, to assist father in overcoming his
own obstacles to appreciating mother's mental illness and understand how
best to provide for his son in light of that illness. Although the
record contains evidence that the agency informed father that he could
attend mother's therapy sessions, it also demonstrates that mother did
not regularly attend her own sessions, and the agency made no
arrangements for father to discuss the sessions he did attend in order
to gain the necessary insight the agency claimed he lacked. Moreover,
even when father said that he was willing to hire a babysitter rather
than leave his child alone with mother, the agency took no steps to help
father find, or cover the cost of, this childcare.
With respect to father's employment, the agency was aware of father's
economic circumstances, including that his employment resulted in
constant travel out of state and that he was attempting to attend visits
in the middle of his shifts. Although father did not recall asking for
help to find local work, there is nothing in the record to indicate that
the agency offered such assistance. The dissent's attempt to minimize
this failing is unpersuasive (see dissenting op at 6-7). The
agency made no efforts to help father search for local employment, which
could have allowed the father to visit the child more often and
ameliorating one of the barriers to reunification that the agency itself
identified. Further, the agency delayed dyadic therapy for two years,
even though the agency identified it as helpful to improve the parental
relationship and the quality of the visits. Through no fault of father,
he was unable to begin dyadic therapy sessions until just days before
the agency filed a termination petition.
Furthermore, the agency provided no evidence that father was
uncooperative or intentionally undermined its efforts to provide
services meant to further the goal of reunification. The record shows
that father attended services when provided, and that he visited his
child as his work schedule allowed, including taking exhausting same-day
bus trips in and out of the City to be with his child and return to
work in time for a night shift. Father thus acted in accord with his
express statement to the agency that he wanted to be reunited with his
child.
The dissent misunderstands this Court's power of review when claiming
that we "[e]schew[ ] the proper standard of review," because we detail
"more effective steps the agency could have taken to promote
reunification" (dissenting op at 3-4). "Whether there is sufficient
evidence in the record to satisfy the clear and convincing standard
presents a question of law reviewable by this Court" (Matter of Westchester County Med. Ctr. [O'Connor],
72 NY2d 517, 529 n 3 [1988]). Because the "clear and convincing
evidence standard . . . forbids relief whenever the evidence is loose,
equivocal or contradictory," we must review the record to ensure that
Family Court's termination of father's parental rights did not rest on
evidence of that nature (id. at 529 ["Nothing less than
unequivocal proof will suffice . . . "]). "Reviewing the entire record
in this manner does not involve making new factual findings, as the
dissent suggests" (id. at 529 n 3; cf. dissenting op at 6-7).
Indeed, the dissent's insistence that we must overlook the
deficiencies in the evidence is plainly contrary to the statutory scheme
and our duty to review for sufficient compliance. Indeed, we cannot
measure the agency's diligence in a vacuum. Each example we provide of
what the agency failed to establish is an objective reference point. The
comparison makes all the more glaring the agency's failure to undertake
diligent efforts.
Family Court concluded that the agency's efforts were "minimal," and
that it should have done more. Although the court correctly articulated
the relevant legal issue—whether the agency made diligent efforts to
strengthen the parental relationship—it relied on Appellate Division
case law that appeared to permit a diligent-efforts finding based on a
minimal standard. We reject that such minimal efforts can, as a matter
of law, constitute diligence. Holding that the agency's minimal efforts
were sufficient is fundamentally at odds with the agency's high burden
of proof and its obligation to make efforts to foster reunification
based on a parent's particular needs. The record here establishes that
the agency was not diligent, as it did not make [*9]"affirmative,
repeated, and meaningful efforts to assist the parent in overcoming [the
obstacles]" to reunification (Sheila G., 61 NY2d at 385).
Finally, while the dissent notes that the child has now been in the
foster care system for over 11 years and decries our decision as causing
"further delay" (dissenting op at 8), it is the agency's failure to
undertake diligent efforts in the first place, from the start of its
intervention in the family's life 11 years ago, that creates the present
state of affairs, not father's efforts to vindicate his constitutional
right to the care and custody of his child. The delay as this case
worked its way through the courts is unfortunate, but it is the
potential result in any case where an agency removes a child from their
home for a lengthy period and then fails to undertake the requisite
diligent efforts to strengthen the parental relationship. Such a delay
cannot justify abdicating our role in holding the agency to its
statutory burden (see Sheila G., 61 NY2d at 285-286). The parent's core constitutional right to the care and custody of their child demands no less.
IV.
Conclusion
Clear and convincing evidence of an "agency's diligent efforts to
encourage and strengthen the parental relationship" is a demanding
standard (Sheila G., 61 NY2d at 380). That heavy burden applies
to agency conduct for good reason. Every parent has a constitutional
right to the care and custody of their child—an interest "far more
precious than any property"—and any lesser standard risks erroneous
termination and irreparable damage to the family (Santosky, 455
US at 758-759). Because "the state's first obligation is to help the
family with services to prevent its break-up or to reunite it if the
child has already left home" (Social Services Law § 384-b [1] [a]
[iii]), an agency must identify the obstacles to reunification and
execute a plan intended to address the family's particular challenges.
Some cases require more services than others, and some require language
assistance and mental health services, as was the case here. Those
services must allow a parent to take maximum advantage of the
opportunity to address the causes that led to a child's removal in the
first instance. The record in this proceeding does not support a finding
that the agency established its statutory burden that it diligently
worked toward reunification.
Accordingly, the Appellate Division's order should be reversed, without costs, and the petition dismissed.
CANNATARO, J. (dissenting):
KYZ, the child who is the subject of this termination of parental
rights proceeding, has faced tremendous challenges for most of his life.
He was removed from his parents' custody days after his birth
[*10]primarily because his mother suffers from schizophrenia that
renders her unable to adequately care for him. Following removal,
father, an itinerant worker in the restaurant industry who has
historically only found work in places far outside New York City,
encountered difficulties maintaining a visitation schedule. Moreover,
father speaks very little English and cannot read or write in any
language, presenting a host of communication challenges. Additionally,
the child was diagnosed with developmental delays at a very young age
which rendered him largely nonverbal during visitation. Both parents
were adjudicated to have neglected the child, and mother's parental
rights were eventually terminated, a determination that is not on appeal
here.
I agree that the New York City Administration for Children's Services
was under a legal obligation from the time it placed KYZ in its care to
exercise diligent efforts to encourage and strengthen the parental
relationship between the child and his father, with a goal towards
reunification. Those efforts were ultimately unsuccessful in this case.
And, it can hardly be disputed that the relationship between father and
child might have benefitted from a greater amount and better-coordinated
delivery of agency resources. But our precedent makes plain that this
is not the applicable legal standard. Because the majority, in the
process of cataloging what it finds to be the many failures of
respondent to exercise better efforts at reunification, articulates a
novel and enhanced standard of review, and engages in impermissible
factfinding, I respectfully dissent.
The majority fundamentally mischaracterizes the legal issue raised on
this appeal. Properly framed, the issue is whether there is record
support for the affirmed finding of permanent neglect and, more
specifically, for the affirmed finding that the agency satisfied its
statutory obligation to make diligent efforts to facilitate the child's
return to father. Under the circumstances of this case, I would conclude
that there is.
In order to determine that a parent has permanently neglected their
child, the court must find that the petitioning agency has demonstrated
by clear and convincing evidence that, during the relevant time period
following the child's placement in the agency's care, the parent failed
"substantially and continuously or repeatedly to maintain contact with
or plan for the future of the child, although physically and financially
able to do so, notwithstanding the agency's diligent efforts to
encourage and strengthen the parental relationship" (Social Services Law
§ 384-b [7] [a]; see Matter of Sheila G., 61 NY2d 368, 380
[1984]). "[C]onsistent with the health and safety of the child," the
agency's primary responsibility is to provide services that will help
reunite the family (Social Services Law § 384-b [1] [a] [iii]; Matter of Jamie M.,
63 NY2d 388, 394 [1984]). The statute, consequently, further defines
diligent efforts as "reasonable attempts by an authorized agency to
assist, develop and encourage a meaningful relationship between the
parent and the child, including but not limited to," arranging for
visitation and providing services to address the problems preventing the
child's return (Social Services Law § 384-b [7] [f]; see also Matter of Star Leslie W.,
63 NY2d 136, 142 [1984]). Given that this a fact-laden determination,
it is well-settled that Family Court's affirmed findings, made under the
proper evidentiary standard, are reviewable only for record support (see Matter of Hailey ZZ. [Ricky ZZ.], 19 NY3d 422, 430 [2012]).
The majority sets forth a litany of deficiencies in the agency's
handling of father's case. Eschewing the proper standard of review, the
majority instead conducts its own wide-ranging factual assessment of
other, more effective steps the agency could have taken to promote
reunification, in pursuit of what is essentially a de novo review of the
record. In so doing, the majority casts father's fact-bound argument
that the agency failed to make diligent efforts as raising a question of
law as to the threshold showing an agency must make to satisfy its
statutory burden, citing to no relevant supporting authority (see majority op at 17, citing Sheila G., 61 NY2d at 385-386 [stating that the agency has the initial burden of proving it has satisfied its statutory duty] and Matter of Michael B.,
58 NY2d 71, 73 [1983] [addressing whether the Appellate Division
properly applied a new legal standard imposed by the United States
Supreme Court while the appeal was sub judice]; see also majority op at 22, citing Matter of Westchester County Med. Ctr. [O'Connor],
72 NY2d 517, 522, 529 n 3 [1988] [addressing whether there was clear
and convincing proof that the subject hospital patient had made a "firm
and settled commitment, while competent," to decline life-sustaining
[*11]medical assistance])[FN1]. The
majority's inability to cite any apposite case supporting that flawed
premise is telling. Its adoption of a legal standard altogether foreign
to this context is as unreasoned as it is sure to sow confusion in the
lower courts.
On the merits, with respect to the agency's claimed failure to
adequately accommodate father's language needs, the majority seems to
reach the conclusion that, as a matter of law, the agency's efforts were
lacking because they failed to provide an interpreter at visitation and
failed to communicate with father in his preferred language. While the
record does not reveal why the initial communications with father were
made in Mandarin, instead of his preferred language of Fuzhou, it does
indicate that neither the agency nor the Mandarin interpreter perceived
that father had any difficulties or deficits in understanding the
language. To the contrary, the testimony was that he was able to
comprehend the proceedings and consistently provided "logical answers"
in Mandarin. Father himself confirmed that he was of "average" fluency
in the language. It is therefore unsurprising that at oral argument,
father repeatedly confirmed that his claim on appeal does not rest upon
the agency's provision of Mandarin interpretation. In any event, the
record reveals that the agency and father communicated adequately and
effectively via the Mandarin interpreter that the agency provided.
Significantly, our review of the agency's diligent efforts in this
regard is limited to the period prior to the filing of the petition in
August 2017. The child had just turned three years old at that time,
and, as noted above, had been diagnosed with special needs, including
developmental delays. The testimony at the fact-finding hearing was that
the child was nonverbal for the first two of those years and was
"[l]imited in verbal speech" for the third. Stated simply, the language
barrier was not an obstacle to reunification at the time the petition
was filed. Rather, Family Court confirmed that it was the infrequent and
inconsistent nature of the visitation, more than the child's placement
in an English/Spanish-speaking household, that "caused a strain in the
bonding process." The agency facilitated visitation with the child,
communicated with father through an interpreter over the phone in a
language he understood and provided him with feedback regarding his
interaction with the child in their team conferences. They also referred
him to a parenting class in Mandarin and to dyadic therapy through a
Fuzhou interpreter. Under the circumstances, there is record support for
the affirmed finding that the agency satisfied its burden.
The primary barriers to reunification actually identified by the
agency were father's failure to engage in regular visitation and the
failure to appreciate the nature of mother's mental illness, as well as
its impact on her ability to safely care for the child. In addressing
these issues, the agency developed a service plan, facilitated
visitation with the child and provided father with transportation
assistance in the form of MetroCards. The agency also accommodated
father's work schedule, ultimately reducing visitation to once or twice a
month at his request, while advising him of the need for more frequent
visitation in order to establish a bond with the child. Nonetheless,
"[m]ost of the time," father left his visits with the child "[a]bout
half an hour" early. Finally, the agency encouraged father to attend
mother's therapy sessions in order to better understand her mental
illness. The reviewing courts with fact-finding power found that the
agency satisfied the diligent efforts standard. There is support in the
record for this determination and it is not our role to determine
whether the agency could have done more.
Notably, the majority engages in its own fact-finding by depicting
father's "economic circumstances" and the "low-wage" nature of his
employment as factors identified by the agency as impacting his failure
to engage in consistent visitation (see majority op at 20-21).
As stated above, the agency and the courts below certainly identified
the lack of consistent visitation between father and child as a
significant obstacle, but [*12]neither court considered father's
economic status a factor in analyzing the agency's diligent efforts. To
the contrary, Family Court specifically observed that "money—providing
financial support and stable housing was not the issue in this case."
The majority's disregard of this affirmed factual finding—under the
guise of answering what the majority insists is a "question of law"
(majority op at 17)—is patently improper (see NY Const, art VI,
§ 3 [a] [with narrow irrelevant exceptions, "(t)he jurisdiction of the
court of appeals shall be limited to the review of questions of law"]).
The majority also portrays the Family Court as having accepted
"minimal" efforts by the agency in satisfaction of the diligent efforts
standard by quoting extensively from the court's oral decision (see
majority op at 10-11, 22-23). The court's subsequent written opinion,
however, clarified that "the agency proved [the permanent neglect] cause
of action and met their burden of proof to show it made diligent
efforts," and that "the agency's efforts met the minimum statutory
requirement that the efforts be reasonable." Although clearly Family
Court expressed that it would have liked the agency to do more, it did,
in fact, apply the correct legal standard. What comes through in Family
Court's oral decision is the court's conclusion that the agency was
making reasonable efforts and that father "failed to respond
accordingly." In other words, the agency's efforts made no impact on
father's insight into either mother's mental illness or the need for
more consistent visitation in order to bond with the child. I agree with
both the application of the diligent efforts standard by the courts'
below, and with the determination that it is in the best interests of
this child to be freed for adoption. Therefore, I would affirm the
Appellate Division order.
Finally, it cannot be disputed that the current situation, in which
father and child do not speak the same language, is regrettable. It may
even be indicative of deeper systemic problems in both the agency's
handling of foster care placements and the time it takes for cases such
as this to wend their way through the Family Courts. But the present
reality is that KYZ has now been in the foster care system for more than
11 years. More than a year ago, the Appellate Division noted that KYZ
"was living in a loving foster home, where his extensive special needs
were being met, and his foster mother wanted to adopt him" (228 AD3d at
562). Before this Court, the Attorney for the Child, in a brief
supporting affirmance, notes that the child is "awaiting adoption" and
that "Family Court has been holding 'freed child' permanency hearings."
Now the entire process is undone. Whatever else the majority hopes to
achieve, the result reached today will cause further delay and continued
instability in this child's life.
Order reversed, without costs, and petition dismissed. Opinion by
Judge Rivera. Chief Judge Wilson and Judges Troutman and Halligan
concur. Judge Cannataro dissents and votes to affirm in an opinion, in
which Judges Garcia and Singas concur.
Decided October 21, 2025
Footnotes
Footnote 1: Fuzhou is a dialect of the Fujian province in Southeast China (see Cathryn Donohue, The Interaction of Tones and Vowels in Fuzhou,
Berkeley Linguistics Society, 97 [2007]). The dialects spoken in urban
and rural areas of Fujian are "quite different," and "accents may even
vary in different regions within the city of Fuzhou" (see Shuxiang You, Yanrong Du, and Qingyi Chen, Production of Mandarin and Fuzhou lexical tones in six- to seven-year-old Mandarin-Fuzhou bilingual children,
71 Acta Linguistica Academia 309, 317 [2024]). There is a sizable
Fuzhounese population in the City, where, according to a 2011 article,
"[t]he major Fuzhounese associations . . . claim between 300,000 to
500,000 Fuzhounese . . . have come to and through New York City since
the 1980s" (Kenneth J. Guest, From Mott Street to East Broadway: Fuzhounese Immigrants and the Revitalization of New York's Chinatown,
7 Journal of Chinese Overseas 24, 29 [2011]). In 2011, "Fuzhounese
represent[ed] the majority of new Chinese immigrants to New York City
and ha[d] . . . surpassed the total Cantonese population in Manhattan's
Chinatown and Brooklyn's Chinese community" (id.).
Footnote 2: Mandarin is distinct from Fuzhou in
vocabulary, tonal characteristics, and phonetics. For example, Fuzhou
has seven tones, while Mandarin has four (see You et al., Production of Mandarin and Fuzhou lexical tones in six- to seven-year-old Mandarin-Fuzhou bilingual children at 310). The languages have "different tonal inventories, with distinct pitch patterns and tonal contrasts" (id. at 316), and they are not mutually intelligible (see Yizhe Jiang, Having dumplings with a fork: language use and ideologies of a Fuzhounese-American youth, Journal of Multilingual and Multicultural Development 1, 3 [2024]).
Footnote 3: After the agency filed its termination
petition and during the two years leading up to the hearing, father was
able to work exclusively in the City.
Footnote 4: Dyadic therapy focuses on a child's
relationship with a parent and is "based on a theoretical understanding
of attachment and intersubjective relationships; and the impact of
developmental trauma" (Dyadic Developmental Psychotherapy,
https://ddpnetwork.org/about-ddp/dyadic-developmental-psychotherapy/
[accessed Sep. 19, 2025]). A child and parent work together, with the
goal that "[t]he child gains relationship experience which helps [them]
to grow and heal emotionally. Family members develop healthy patterns of
relating and communicating" (id.).
Footnote 5: Termination of mother's parental rights is not at issue on this appeal.
Footnote 6: Father did not preserve, and he does not
now raise, a claim that the agency's conduct violated a New York or
federal antidiscrimination law or regulation. We therefore limit our
analysis to whether the agency met its burden under Social Services Law §
384-b.
Footnote 7: Contrary to the Appellate Division's
conclusion, the record does not support that father refused to learn
English, as there is no evidence that the agency referred father to
English language instruction or otherwise helped him access relevant
learning resources. Father does not challenge the Appellate Division's
determination on this issue as an inappropriate factor in assessing the
agency's efforts, and we therefore have no occasion to opine on it.
Footnote 1: A look at the language replaced by the ellipsis in the passage quoted from Westchester County Med. Ctr.
reveals the lengths to which the majority must go in order to transform
its factual review into a question of law. The full quotation is
"[n]othing less than unequivocal proof will suffice when the decision to terminate life supports is at issue" (majority op at 22, citing Westchester County Med. Ctr., 72 NY2d at 529 [omitted language italicized])."
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