| Matter of Jasmine F. (Jeffrey G.) |
| 2010 NY Slip Op 04671 [74 AD3d 1396] |
| June 3, 2010 |
| Appellate Division, Third Department |
| In the Matter of Jasmine F., a Child Alleged to be PermanentlyNeglected. Ulster County Department of Social Services, Respondent; Jeffrey G., Appellant.(Proceeding No. 1.) In the Matter of Timothy G., a Child Alleged to be Permanently Neglected.Ulster County Department of Social Services, Respondent; Jeffrey G., Appellant. (ProceedingNo. 2.) In the Matter of Summer G., a Child Alleged to be Permanently Neglected. UlsterCounty Department of Social Services, Respondent; Jeffrey G., Appellant. (Proceeding No. 3.)In the Matter of Timothy G., a Child Alleged to be Permanently Neglected. Ulster CountyDepartment of Social Services, Respondent; Amy F., Appellant. (Proceeding No. 4.) In theMatter of Summer G., a Child Alleged to be Permanently Neglected. Ulster County Departmentof Social Services, Respondent; Amy F., Appellant. (Proceeding No.5.) |
—[*1] [*2]Andrew Kossover, Public Defender, Kingston (Mari AnnConnelly Sennett of counsel), for Amy F., appellant. Pamela J. Joern, Ulster County Department of Social Services, Kingston, for respondent. Sarah E. Rakov, Kingston, attorney for the children.
Lahtinen, J. Appeals (1) from an order of the Family Court of Ulster County (McGinty, J.),entered January 13, 2009, which, in proceeding Nos. 1, 2 and 3 pursuant to Social Services Law§ 384-b, granted petitioner's motion for partial summary judgment, (2) from an order ofsaid court, entered January 14, 2009, which, in proceeding Nos. 4 and 5 pursuant to SocialServices Law § 384-b, granted petitioner's motion for partial summary judgment, and (3)from an order of said court, entered March 5, 2009, which granted petitioner's applications, infive proceedings pursuant to Social Services Law § 384-b, to adjudicate respondents'children to be permanently neglected, and terminated respondents' parental rights.
Based on respondents' history of drug abuse and domestic violence, Family Court found inAugust 2007 that their three children (born in 2001, 2004 and 2007)[FN1]were neglected, and the children were continued in foster care where they had already been forseveral months. Respondents were ordered to comply with various conditions, includingrehabilitation programs and refraining from using controlled substances. Alleging that they failedto comply with those conditions, violation petitions were filed as to each respondent in June2008 and, while those petitions were pending, permanent neglect petitions were filed inSeptember 2008. After a hearing on the violation petitions, Family Court rendered decisions inOctober 2008 finding clear and convincing evidence that each respondent had failed to completerequired programs and had continued to use controlled substances. Significantly, in eachdecision on the violation petitions, Family Court also held that "[petitioner] has established hereby clear and convincing evidence that [each] respondent has failed to address the shortcomingsthat led to the removal of [his or her] children and has thereby failed to have a plan for thechildren's future." Relying on these findings, petitioner moved for partial summary judgment inthe pending permanent neglect [*3]proceedings. The motionswere opposed on numerous grounds, including that the violation petitions had not alleged afailure to plan and that a judicial determination regarding diligent efforts by petitioner had notyet been made. Family Court nevertheless granted the motions, holding that "[t]he only issue thatremains is whether [petitioner] made diligent efforts to encourage and strengthen the parentalrelationship." Family Court found such diligent efforts following a hearing and ultimatelyterminated respondents' parental rights. Respondents appeal.
There is merit to respondents' argument that partial summary judgment was improperlygranted. The two elements that an agency seeking to establish permanent neglect must prove are:" 'first, that it made diligent efforts to strengthen the parent-child relationship and, second, thatdespite those diligent efforts, the parent has failed to maintain contact with the child orparticipate in plans for the child's future for one year after the agency has been charged with thechild's care' " (Matter of Jose Q., 58 AD3d 956, 957 [2009], quoting Matter of Gerald BB., 51 AD3d1081, 1083 [2008], lv denied 11 NY3d 703 [2008]). The second element of thepermanent neglect analysis (i.e., lack of contact or failure to plan) cannot be decided as a matterof law before the first element (i.e., diligent efforts) has been addressed.[FN2]Indeed, the Court of Appeals has held that proof that petitioner "discharged its statutoryobligation to exercise diligent efforts to encourage and strengthen the parental relationship [is] 'athreshold consideration and a necessary prerequisite to any determination ofpermanent neglect' " (Matter of Jamie M., 63 NY2d 388, 390 [1984] [emphasis added],quoting Matter of Sheila G., 61 NY2d 368, 386 [1984]; see Matter of GregoryB., 74 NY2d 77, 86 [1989]; Matter of Star Leslie W., 63 NY2d 136, 142 [1984])."Only when this duty has been deemed satisfied may a court consider and determine whether theparent has fulfilled his or her duties to maintain contact with and plan for the future of the child"(Matter of Sheila G., 61 NY2d at 373). Stated another way, a parent's contacts orplanning regarding a child—who necessarily has been in petitioner's care for more thanone year (see Social Services Law § 384-b [7])—cannot be fairly assesseduntil petitioner establishes the efforts it made to permit and facilitate such contacts or planning.
Here, the second element was decided as a matter of law before petitioner presented anyproof or made any application to Family Court regarding its diligent efforts. This was error.Moreover, the earlier findings regarding the second element—upon which petitioner'ssuccessful motions for partial summary judgment were granted—were made in the contextof violation proceedings where the issue of failure to plan had not been alleged and was not aproper one for determination. Since the law establishes that the issue of a parent's contact with orplanning for a child cannot be dispositively decided before the issue of diligent efforts has beenaddressed, the procedure used here was defective, and the error in such regard cannot, underthese [*4]circumstances, be considered harmless. The ordersgranting partial summary judgment must therefore be reversed. The permanent neglectdeterminations were premised, in significant and integral part, upon those orders. Accordingly,the order granting the permanent neglect petitions must also be reversed and the matters remittedfor a new hearing before another judge.
Mercure, J.P., Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that the orders enteredJanuary 13, 2009 and January 14, 2009 are reversed, on the law, without costs, and motionsdenied. Ordered that the order entered March 5, 2009 is reversed, on the law, without costs, andmatter remitted to the Family Court of Ulster County for further proceedings not inconsistentwith this Court's decision before a different judge.
Footnote 1: While respondent Jeffrey G. isthe father of all three children, respondent Amy F. is the biological mother of the two youngest.Her sister gave birth to the oldest, but eventually surrendered her parental rights and Amy F.reportedly acted as the child's mother.
Footnote 2: There is no contention that thecurrent case falls within one of the exceptions where diligent efforts are not required (seeMatter of Jawan Y., 274 AD2d 696, 697 [2000]), and petitioner made no application to beexcused from this obligation (see Social Services Law § 384-b [7]).