| Matter of Jacelyn TT. (Tonia TT.\MCarlton TT.) |
| 2011 NY Slip Op 00466 [80 AD3d 1119] |
| January 27, 2011 |
| Appellate Division, Third Department |
| In the Matter of Jacelyn TT. and Others, Neglected Children.Clinton County Department of Social Services, Respondent; Tonia TT., Appellant. Carlton TT.,Appellant. (Proceeding No. 1.) In the Matter of Sasha TT., a Neglected Child. Clinton CountyDepartment of Social Services, Respondent; Tonia TT., Appellant. (Proceeding No.2.) |
—[*1] Jessica C. Eggleston, Saratoga Springs, for Carlton TT., appellant. Christine G. Peters, Clinton County Department of Social Services, Plattsburgh, forrespondent. Aaron Turetsky, Keeseville, attorney for the children.
Stein, J. Appeals from two orders of the Family Court of Clinton County (Lawliss, J.),entered June 3, 2010, which granted petitioner's applications, in two proceedings pursuant toFamily Ct Act article 10-A, to extend the placement of respondent's children.
In 2009, Family Court issued two orders finding that respondent (hereinafter the mother) hadneglected four of her children including, as relevant here, Jacelyn TT. (born in 2001) and SashaTT. (born in 2008). Although Carlton TT., the father of Jacelyn TT. and two other children (butnot Sasha TT.), was not named as a respondent in the neglect proceeding, he appeared at thefact-finding hearing, but did not participate therein. Ultimately, all of the children were placed inpetitioner's care. Petitioner initiated these proceedings seeking continuation of such placement.Family Court held a permanency hearing at which petitioner and the mother agreed thatplacement of the children should continue, with a goal of return to a parent. Carlton TT.(hereinafter the father) again appeared but presented no evidence and did not seekcustody.[FN*]In two subsequent permanency hearing orders pertaining solely to Jacelyn TT. and Sasha TT., thecourt continued placement of the children but modified the goal of their permanency plans fromreunification to placement for adoption. The mother appeals from both orders and the fatherappeals only from the order relating to Jacelyn TT. (hereinafter the child).
Initially, we note that the mother's appeals are moot as she has now surrendered her parentalrights to both children (see Matter of Simeon F., 58 AD3d 1081, 1081 [2009], lvdenied 12 NY3d 709 [2009]) and we do not find the exception to the mootness doctrine to beapplicable (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]). Nonetheless,we will address the mother's contentions insofar as they are also advanced by the father withrespect to his appeal, since we conclude that his appeal is not moot. While any subsequentpermanency orders will effectively supercede the orders appealed from (see Matter of Ariel FF., 63 AD3d1202, 1203[*2][2009]), by modifying the permanency goal,Family Court altered petitioner's obligations in future permanency hearings from working towardreunification to working toward permanent placement and termination of parental rights(see Family Ct Act § 1089 [c] [4]; [d] [2]). Thus, any new permanency orders willbe a direct result of the orders appealed from and the issue of whether those orders were properwill still affect the father's rights (see Matter of Hearst Corp. v Clyne, 50 NY2d at 714;Matter of Kenneth QQ. [Jodi QQ.],77 AD3d 1223, 1224 [2010]; Matter of Brandon DD. [Jessica EE.], 74 AD3d 1435, 1437 n 2[2010]).
Turning to the merits, the father argues that Family Court abused its discretion by modifyingthe permanency goal without any request from the parties. We disagree. At the conclusion of apermanency hearing, Family Court is required to make findings and enter an order of disposition"upon the proof adduced . . . and in accordance with the best interests and safety ofthe child" (Family Ct Act § 1089 [d]). Where the court determines that the child is not tobe immediately returned to the parent, it must indicate whether the permanency goal for the child"should be approved or modified" (Family Ct Act § 1089 [d] [2] [i] [emphasisadded]) and may select among various alternatives including, among others, the child's eventualreturn to the parent or placement for adoption (see Family Ct Act § 1089 [d] [2] [i][A]-[E]). Notably, Family Ct Act § 1089 (c) (5) (i) characterizes petitioner's proposedpermanency goal as a "recommendation." While the statute does not explicitly permit the court tomodify a permanency goal in the absence of an application by one of the parties (compareFamily Ct Act § 340.1 [4] [a]; § 1048 [a]; § 1061), it suggests such authorityand does not expressly constrain the court from doing so (compare CPLR 7511; FamilyCt Act § 340.1 [4] [b]; § 1028 [a]). We, therefore, conclude that Family Court hasthe authority to modify an existing permanency goal absent a specific request by a party.
We also conclude that Family Court's determination here is supported by a sound andsubstantial basis in the record and, therefore, will not be disturbed (see Family Ct Act§ 1089 [d] [2] [i]; Matter of TelsaZ. [Rickey Z.], 74 AD3d 1434, 1435 [2010]). The hearing testimony and evidencebefore Family Court primarily related to the mother's efforts and progress toward addressing thebasic needs of the children. The record is replete with evidence that, despite petitioner'sassistance, the mother had not sufficiently demonstrated a willingness to work toward theoriginal permanency goal of reunification or made satisfactory progress in that regard.
As for the father, although he appeared at the permanency proceedings with counsel, he didnot present any evidence or cross-examine any witnesses, nor has he ever exercised his statutoryright to pursue custody of the child (see Family Ct Act § 1035 [d]). Nonetheless,petitioner has fulfilled its statutory obligation to make reasonable efforts to reunify the fatherwith the child (see Family Ct Act § 1089 [d] [2] [iii]). Petitioner has regularly keptthe father informed of the child's progress in foster care and in school, suggested parentingclasses that he could take to assist him and repeatedly requested information from him as to hisplans for custody of the child. However, the father indicated to petitioner's caseworker that he didnot wish to be a custodial resource and he failed to respond to repeated requests for furtherinformation from him regarding his permanent plans for the child. Petitioner's caseworker also[*3]testified regarding her efforts during the father's visitation tofacilitate his interaction with the child, to no avail. For example, even though the caseworkersuggested questions he could ask and games he could play, he barely interacted with the childand, on one occasion, attempted to leave the visitation three times in a 45-minute period.
The purpose of Family Ct Act article 10-A is, in part, to "promote[ ] permanency, safety andwell-being" in the lives of children placed in foster care (Family Ct Act § 1086; seeSenate Mem in Support, Bill Jacket, L 2005, ch 3, 2005 McKinney's Session Laws of NY, at1907-1909), which may involve initiating proceedings to terminate parental rights in appropriatecircumstances (see Social Services Law § 384-b [1] [b]; Matter of JoyceT., 65 NY2d 39, 47 [1985]). While "[t]he State's first obligation is to help the family staytogether[,] . . . the Legislature has determined that a normal family life in apermanent home offers the best opportunity for a child to develop and thrive. . . [Thus, w]hen it is clear that natural parents cannot offer a normal home for achild, . . . the statute directs that a permanent home be sought" (Matter of JoyceT., 65 NY2d at 47 [citations omitted]). Here, the evidence indicated a lack of awareness onthe part of the mother and the father regarding the child's basic needs and of the reason for thechild's placement in foster care, as well as a failure to understand—or toaccept—their parenting responsibilities despite petitioner's reasonable efforts. Under thesecircumstances, we perceive no abuse of discretion in Family Court's determination that a changeof the permanency goal to adoption was in the child's best interest (see Matter of Haylee RR., 47 AD3d1093, 1095 [2008]).
We have considered the father's remaining contentions and find them to be unpersuasive.
Cardona, P.J., Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the order enteredJune 3, 2010 relating to Jacelyn TT. is affirmed, without costs. Ordered that respondent's appealfrom the order entered June 3, 2010 relating to Sasha TT. is dismissed, as moot, without costs.
Footnote *: The father is, nevertheless,considered a party to the permanency proceeding (see Family Ct Act § 1089 [b] [1][i]).