| Matter of Faith R. |
| 2008 NY Slip Op 09132 [56 AD3d 982] |
| November 20, 2008 |
| Appellate Division, Third Department |
| In the Matter of Faith R., a Child Alleged to be PermanentlyNeglected. Tompkins County Department of Social Services, Respondent; Corey S.,Appellant. |
—[*1] Joseph Cassidy, Tompkins County Department of Social Services, Ithaca, for respondent. Karen Kimball, Law Guardian, Wynantskill.
Kavanagh, J. Appeal from an order of the Supreme Court (Sherman, J.), entered October 15,2007 in Tompkins County, which granted petitioner's application, in a proceeding pursuant toSocial Services Law § 384-b, to adjudicate respondent's child to be permanently neglected,and terminated respondent's parental rights.
Respondent is the father of a daughter born in 2004. In March 2005, petitioner filed a neglectproceeding pursuant to Family Ct Act article 10 against respondent and the child's mother. Onemonth later, pursuant to a temporary custody order, the child was removed from her home andplaced with her maternal grandmother. In November 2005, an order of neglect was issued afterrespondent and the mother made admissions of neglect. The child remained in the care of hergrandmother and, after numerous permanency hearings were conducted, the order awarding thegrandmother temporary custody was extended.[*2]
In March 2007, petitioner commenced this proceedingpursuant to Social Services Law § 384-b alleging that respondent had permanentlyneglected the child, and it sought termination of his parental rights.[FN1]After a hearing, Supreme Court found that respondent had permanently neglected the child and,at the conclusion of the dispositional hearing, terminated his parental rights, prompting thisappeal.
The permanent neglect petition alleged that, notwithstanding the diligent efforts by petitionerto strengthen the parental relationship between respondent and the child, he failed to maintaincontact and plan for the future of the child (see Social Services Law § 384-b). Thepetition alleged that respondent failed to provide a safe and stable home for the child and fulfillhis commitment to complete certain programming—including one that focused ondomestic violence—and he did not participate, as directed, in an evaluation to determinehis dependence upon drugs or alcohol. It also claimed that he persistently violated the terms of anorder of protection, as well as the terms of his parole supervision[FN2]—both of which included a requirement that he have no contact with the child'smother—and that as a result of his repeated violations, respondent was incarcerated fromMarch 2005 until February 2007, and then again in March 2007.[FN3]On appeal, respondent concedes that there was sufficient evidence to support the finding that hehad permanently neglected the child, however, he argues that Supreme Court should have issueda suspended judgment allowing for the passage of a period of time to determine if termination ofhis parental rights was in the child's best interest.
Once a child has been adjudicated to be permanently neglected, the court must focus on whatdisposition involving the child's future care and custody is in the child's best interest (seeFamily Ct Act § 631; Matter ofAngelica VV., 53 AD3d 732, 733 [2008]; Matter of Raine QQ., 51 AD3d 1106, 1106 [2008], lvdenied 10 NY3d 717 [2008]). There is "no presumption that any particular disposition,including the return of a child to a parent, promotes such interests" (Matter of AngelicaVV., 53 AD3d at 733; see Family Ct Act § 631; Matter of Arianna OO., 29 AD3d1117, 1117-1118 [2006]).
We can find no basis upon which to disturb Supreme Court's decision that the child's bestinterest was served by the termination of respondent's parental rights (see Matter of Nahia M., 39 AD3d918, 921 [2007]; Matter of JamesX., 37 AD3d 1003, 1007 [2007]). The child has resided with the maternal grandmothersince she was five months old, and respondent, for much [*3]ofthat time, has been incarcerated. While he may have made meaningful efforts to remain incontact with the child during his time in prison, respondent's chronic failure to comply with theterms of the orders of protection as well as the conditions of his parole, coupled with his apparentinability to control his impulsive and aggressive behavior, raises serious and legitimate questionsas to his ability to provide this child with a safe and stable environment. He has provided noproof that he was ever able to obtain gainful employment or secure adequate housing withinwhich he could raise the child. Equally disturbing is the fact that, since his release from prison inJuly 2007, another complaint has been filed against him alleging a violation of his parole, whichif proven, would expose respondent to yet another extended term of imprisonment.[FN4]
While respondent has been incarcerated, the child's primary caregiver has been hergrandmother. By all accounts, the child appears to be doing well, in a stable environment that hasbeen her home for her entire life, and has thrived while in the grandmother's custody and underher care.[FN5]Taken as a whole, these facts provide a sound and substantial basis for Supreme Court'sconclusion that the immediate termination of respondent's parental rights was in the child's bestinterest (see Matter of Angelica VV., 53 AD3d at 733; Matter of Jayde M., 36 AD3d1168, 1170 [2007], lv denied 8 NY3d 809 [2007]; Matter of Joshua BB., 27 AD3d867, 869 [2006]). Giving deference to the court's findings, we agree that "[f]reeing the childfor adoption provided [her] with prospects for permanency and some sense of the stability [she]deserved, rather than the perpetual limbo caused by unfulfilled hopes of returning to respondent'scare" (Matter of Raine QQ., 51 AD3d at 1107) and, therefore, termination wasappropriate.
Mercure, J.P., Peters, Lahtinen and Malone Jr., JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote 1: After a finding that the motherpermanently neglected the child, she surrendered her parental rights.
Footnote 2: A temporary order of protectionwas issued in December 2004 that required respondent to stay away from the mother and torefrain from communicating in any way with her. In May 2005, after respondent was convicted ofcriminal mischief in the fourth degree, an order of protection was issued that again required himto stay away from the mother and refrain from having any contact with her. One month later,respondent was convicted of criminal contempt in the second degree for violating the terms ofthis order and was subsequently sentenced to nine months in jail.
Footnote 3: The mother was pregnant in2007 apparently with respondent's child; she was due to deliver in November 2007.
Footnote 4: In March 2007, shortly after hehad been released from jail and placed on parole, respondent was again found in the presence ofthe child's mother and was charged with criminal contempt in the first degree as well as aviolation of the terms of his parole. He subsequently admitted to violating the conditions of hisparole and, after being convicted of criminal contempt in the second degree, was sentenced to anadditional six months in prison. He was released in July 2007 and again placed on parole. OnSeptember 15, 2007, he was again arrested for criminal contempt in the first degree and chargedwith violating the terms of the order of protection by placing numerous threatening phone calls tothe child's mother's home, as well as making threatening phone calls to another person. Inaddition, respondent admitted to consuming alcoholic beverages and again was charged withviolating the conditions of his parole. Finally, he was also charged with harassment in connectionwith a complaint made by another woman who alleged that he had threatened to kill her. Thesecharges, as well as his most recent parole violation, were pending on the date of the dispositionalhearing.
Footnote 5: The grandmother has indicatedthat she wants to adopt the child.