| Matter of Victor WW. (Salma XX.) |
| 2012 NY Slip Op 05060 [96 AD3d 1281] |
| June 21, 2012 |
| Appellate Division, Third Department |
| In the Matter of Victor WW. and Another, Children Alleged to bePermanently Neglected. Schenectady County Department of Social Services, Appellant; SalmaXX., Respondent. |
—[*1] Paul J. Connolly, Delmar, for respondent. Lara P. Barnett, Schenectady, attorney for the children.
Garry, J. Appeal from an order of the Family Court of Schenectady County (Clark, J.),entered October 7, 2011, which dismissed petitioner's application, in a proceeding pursuant toSocial Services Law § 384-b, to adjudicate respondent's children to be permanentlyneglected.
Respondent is the mother of twin children (born in 2003) who were removed from her care inDecember 2008 after they were injured by her paramour. Respondent admitted to neglect on thebasis of her then-untreated mental illness and was directed, among other things, to comply withsubstance abuse and mental health treatment.[FN*]In March 2011, petitioner commenced this permanent neglect proceeding seeking to terminaterespondent's parental rights. Following a hearing, Family Court dismissed the petition. Petitionerappeals.[*2]
Family Court determined that petitioner made therequisite diligent efforts to strengthen and encourage respondent's relationship with her children,but did not prove by clear and convincing evidence that she failed to plan for the children's futurefor the specified period (see Social Services Law § 384-b [7]; Family Ct Act§ 614; Matter of Jyashia RR.[John VV.], 92 AD3d 982, 983 [2012]). This Court accords great deference to suchdeterminations because of the court's opportunity to evaluate the demeanor and credibility ofwitnesses, and will disturb its factual findings only "if they lack a sound and substantial basis inthe record" (Matter of Joshua BB.,27 AD3d 867, 869 [2006] [internal quotation marks and citation omitted]). Petitionercontends that the requisite basis is lacking as respondent's interactions with her paramourdemonstrate that she continues to lack insight into the risk posed to her children by domesticviolence and has thus failed to " 'take meaningful steps toward alleviating the conditions that ledto the children's removal from [her] home' in the first instance" (Matter of Alaina E., 59 AD3d 882,885 [2009], lv denied 12 NY3d 710 [2009], quoting Matter of Lisa Z., 278 AD2d674, 677 [2000]). Unfortunately, Family Court failed to fully address and analyze this key issueof the risks posed to the children by domestic violence; however, the record is sufficientlycomplete to permit this Court to exercise its own factual review of the testimony and evidence(see Matter of Alexis X., 19 AD3d759, 761 [2005]; Matter of Kaitlyn R., 279 AD2d 912, 914 [2001]; Matter ofKelly G., 244 AD2d 709, 709-710 [1997]).
Clearly, respondent initially failed to understand the gravity of both the risk posed and theinjuries caused to the children by the paramour, claiming that he had only been "rough playing"with the children. During this early period, she told various providers that she planned tocontinue her relationship with him and wanted him to be part of the children's lives. However, bythe end of 2009, respondent had ended her relationship with him and obtained an apartment ofher own. Further, she made sufficiently impressive progress in other areas—includingengaging in mental health treatment and other services, acquiring a car and regular employment,and avoiding the use of drugs—that, by February 2010, petitioner was allowingunsupervised visits and planning to return the children to respondent's care at the end of theschool year.
In April 2010, petitioner deferred these plans and reinstated supervised visitation uponlearning that respondent might have used marihuana on one occasion and had violated hervisitation contract by permitting a man known as Brandon to be present during a visit with herchildren. Thereafter, respondent experienced a cascade of setbacks; she lost her automobile as aresult of a car accident, which then resulted in the loss of her employment and apartment, and shedeveloped medical problems that required several hospitalizations. During this period hercompliance with treatment and services deteriorated.
However, in 2010, respondent did successfully complete a domestic violence educationprogram on how to recognize dangerous men. It further appears that, except for a brief period atthe end of 2010, she continued to avoid contact with the paramour.Petitioner contends that this testimony reveals that two years after the removal of her children,respondent still failed to appreciate the risk posed by her relationship with the paramour.Respondent's progress was described by a family support worker who testified that althoughrespondent initially refused to concede that the paramour had harmed her children or posed anyrisk to them, in the months immediately prior to commencement of this proceeding, respondentconsistently took the position that the paramour had hurt her children and that she wantednothing to do with him.[*3]
Taken as a whole, this record does not reveal thatrespondent failed to "take meaningful steps to correct the conditions that led to the child[ren]'sremoval" (Matter of Tatianna K.[Claude U.], 79 AD3d 1184, 1186 [2010]; see Social Services Law §384-b [7] [c]; Matter of Alaina E., 59 AD3d at 885). Nor did she display any general"pattern of hostility and refusal to cooperate" with petitioner's efforts to assist her (Matter of Tailer Q. [Melody Q.], 86AD3d 673, 674 [2011]). Instead, she cooperated—not always perfectly orconsistently—with the services provided to her, made considerable efforts to visit herchildren regularly and, by all accounts, maintained a close, appropriate and mutually affectionaterelationship with the children throughout their stay in petitioner's care. Respondent'sshortcomings are significant and her progress has been inconsistent, but the record in this closeand difficult case does not provide clear and convincing proof that she "substantially andcontinuously or repeatedly [failed] to maintain contact with or plan for the future" of her childrenfor the statutory period (Social Services Law § 384-b [7] [a]; see Matter of AlexisX., 19 AD3d at 761-762; compareMatter of Nicholas R. [Jason S.], 82 AD3d 1526, 1527-1528 [2011], lv denied17 NY3d 706 [2011]; Matter of ShaniaD. [Peggy E.], 82 AD3d 1513, 1514 [2011]; Matter of Ronnie P. [Danielle Q.], 77 AD3d 1094, 1096-1097[2010]).
Peters, P.J., Mercure, Stein and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: Respondent is diagnosed withmajor depression.