| Matter of Arianna I. (Roger I.) |
| 2012 NY Slip Op 08189 [100 AD3d 1281] |
| November 29, 2012 |
| Appellate Division, Third Department |
| In the Matter of Arianna I., a Child Alleged to be Abandoned.Cortland County Department of Social Services, Respondent; Roger I., Appellant. Lisa K. Miller,as Attorney for the Children, Appellant. (Proceeding No. 1.) In the Matter of Jessalyn J., a ChildAlleged to be Permanently Neglected. Cortland County Department of Social Services,Respondent; Charles K., Appellant. Lisa K. Miller, as Attorney for the Children, Appellant.(Proceeding No. 2.) In the Matter of Jessalyn J., a Child Alleged to be Permanently Neglected.Cortland County Department of Social Services, Respondent; Jessica J., Appellant. Lisa K.Miller, as Attorney for the Children, Appellant. (Proceeding No. 3.) In the Matter of Arianna I., aChild Alleged to be Permanently Neglected. Cortland County Department of Social Services,Respondent; Jessica J., Appellant. Lisa K. Miller, as Attorney for the Children, Appellant.(Proceeding No. 4.) |
—[*1] Bruce Evans Knoll, Albany, for Charles K., appellant. Norbert A. Higgins, Binghamton, for Jessica J., appellant. Lisa K. Miller, McGraw, attorney for the children, appellant. Kathleen A. Sullivan, Cortland County Department of Social Services, Cortland, forrespondent in proceeding No. 1. Ingrid Olsen-Tjensvold, Cortland County Department of Social Services, Cortland, forrespondent in proceeding Nos. 2, 3 and 4.
Kavanagh, J. Appeals from five orders of the Family Court of Cortland County (Campbell,J.), entered May 9, 2011, May 10, 2011, July 25, 2011 and July 29, 2011, which grantedpetitioner's applications, in four proceedings pursuant to Social Services Law § 384-b, toadjudicate the subject children to be abandoned and/or permanently neglected, and terminatedrespondents' parental rights.
Respondent Jessica J. (hereinafter the mother) is the mother of two girls, Arianna I. (born in2004) and Jessalyn J. (born in 2006). Respondents Charles K. and Roger I. are the fathers ofJessalyn and Arianna, respectively. In October 2009, petitioner removed both children from themother's custody, because, in addition to engaging in conduct indicating that she had significantmental health problems, she was in an abusive relationship and had previously assaultedJessalyn. At the time the children were removed from her custody, Charles was incarcerated andRoger had only recently been released from prison. After a temporary order of protection wasentered barring the mother from having any contact with the children, Family Court adjudicatedboth girls to be neglected and, upon consent, entered a dispositional order requiring that theyremain in petitioner's custody. The order also required that the mother undergo mental healthcounseling, avoid violent conduct, submit to drug and alcohol evaluations, participate in certainprogramming and make suitable arrangements so that the children could safely reside with her.
In November 2010, petitions were filed seeking to terminate respondents' parental rights.Specifically, the petitions alleged that the mother had permanently neglected both children,Charles had permanently neglected Jessalyn, and Roger had abandoned Arianna. Followingfact-finding hearings, Family Court found that Jessalyn had been permanently neglected by herparents, and Arianna, in addition to being abandoned by Roger, had been permanently neglected[*2]by the mother. A dispositional hearing was held, after whichthe court terminated respondents' parental rights and freed the children for adoption.Respondents, as well as the attorney for the children, now appeal.[FN1]
Initially, we note that petitioner established by clear and convincing evidence that it madediligent efforts to promote a constructive relationship between the mother and the two children(see Social Services Law § 384-b [7] [a]; Matter of James J. [James K.], 97 AD3d 936, 936 [2012]; Matter of Havyn PP. [Morianna RR.],94 AD3d 1359, 1360 [2012]). In that regard, we note the uncontroverted testimony ofpetitioner's caseworker that, in addition to establishing a visitation schedule and arranging for themother to participate in various programming, the caseworker met with the mother monthly todiscuss a service plan for the children (see Matter of James J. [James K.], 97 AD3d at937; Matter of James X., 37 AD3d1003, 1006 [2007]). Moreover, the mother not only failed to faithfully attend mental healthcounseling sessions, but did not complete any of the substance abuse programs arranged for herby petitioner. In addition, the mother continued to have contact with her formerpartner—with whom she had a violent relationship—and did not fully cooperatewith petitioner's caseworkers in their efforts to promote a constructive relationship between herand the children. This record, in our view, supports a finding that the mother did not make ameaningful attempt to plan for the children's future and, as such, permanently neglected them(see Social Services Law § 384-b [7] [c]; Matter of James J. [James K.], 97AD3d at 938; Matter of Tatianna K.[Claude U.], 79 AD3d 1184, 1185-1186 [2010]; see also Matter of Audrey I., 57 AD3d 1172, 1174 [2008], lvdenied 12 NY3d 704 [2009]; Matterof Vashaun P., 53 AD3d 712, 716 [2008]).
While the mother has undoubtably permanently neglected the children, we do not agree, onthis record, that termination of her parental rights at this time is in the children's best interests(see Family Ct Act § 631; Matter of Eric G., 59 AD3d 785, 788 [2009]). In that regard, wenote that the mother faithfully adhered to the weekly visitation schedule and, throughout thisproceeding, sought to maintain contact with the children. She acted appropriately with thechildren during these visits, and petitioner concedes that the contact she had with the childrenduring these visits had a beneficial impact on them. Moreover, each child enjoys a strongemotional attachment with the mother and, according to the attorney for the children, hasexpressed a desire to live with her. While we are mindful of the mother's prior failure to completetherapy and programming, "[a] suspended judgment is intended to provide an [*3]opportunity—in effect, a second chance—forreunification of parent and child" (Matter of Hailey ZZ. [Ricky ZZ.], 19 NY3d 422, 428 n 3 [2012]).Since these proceedings began, the mother has obtained suitable housing and has expressed awillingness to participate in programming and mental health counseling as required by petitioner.Significantly, the attorney for the children states that they have not fared well in foster care andthe foster parents are not seeking to adopt them. On this record, the immediate termination of themother's parental rights is not in the children's best interests, and a suspended judgment withappropriate conditions should be entered by Family Court (see Matter of Eric G., 59AD3d at 786; see also Matter of KrystalB. [Thomas B.], 77 AD3d 1110, 1111 [2010]). As a result, the order terminating themother's parental rights must be modified in this regard and the matter remitted for the entry of asuspended judgment, the duration of which, as well as the essential conditions, to be determinedby Family Court.
As for the abandonment of Arianna by her father, petitioner was required to show by clearand convincing evidence that, during the period of at least six months prior to the petition beingfiled, Roger "evince[d] an intent to forego his . . . parental rights and obligations asmanifested by his . . . failure to visit the child and communicate with the child oragency, although able to do so and not prevented or discouraged from doing so by the agency"(Social Services Law § 384-b [5] [a]; see Social Services Law § 384-b [3][g] [i]; [4] [b]; Matter of Stephen UU.[Stephen VV.], 81 AD3d 1127, 1128 [2011], lv denied 17 NY3d 702 [2011]).Here, Roger and the attorney for the children argue that petitioner effectively prevented Rogerfrom communicating with his daughter during the relevant time period (see Matter of Jamaica M. [Hakeem N.],90 AD3d 1105, 1106 [2011], lv denied 18 NY3d 806 [2012]; Matter of Ryan I. [Laurie U.], 82 AD3d1524, 1526 [2011]). In that regard, Roger testified that in November 2009, he went topetitioner's office seeking to see Arianna,[FN2] but was told by a caseworker that to have any contact with the child he would have to file apetition in Family Court. Roger claims that he received no assistance in preparing such anapplication.
The caseworker provides a very different description of her contact with Roger. She testifiedthat Roger was provided with copies of relevant correspondence regarding the proceeding,including reports detailing the service plan in place for the child, as well as letters notifying himof her foster care placement and his child support obligations. She acknowledged informingRoger that he had to go to Family Court to gain access to Arianna and admits to harboringreservations about Roger having any contact with the child because he was living with a womanwho had a Child Protective Services history and never had custody of the child since he had onlyrecently been released from prison. The caseworker also testified that her only contact withRoger was in November 2009 and that, to her knowledge, he did not again contact the agencyduring the relevant time period, or make any other attempts to gain access to his child. Based onthis record, we cannot conclude that Roger has proven that petitioner interfered with [*4]his efforts to have contact with Arianna (see Matter of Ryan Q. [Eric Q.], 90AD3d 1263, 1265 [2011], lv denied 18 NY3d 809 [2012]), and Family Court'sdetermination that he abandoned her is supported by the record evidence (see Matter of Lily LL. [Eric MM.], 88AD3d 1121, 1123 [2011]; Matter ofDevin XX., 20 AD3d 639, 640 [2005]).
Charles claims—and the attorney for the children agrees—that petitioner failedto make diligent efforts to foster a constructive relationship between him and Jessalyn. Incircumstances involving incarcerated parents, diligent efforts may include "apprising theincarcerated parent of the child's well-being, developing an appropriate service plan,investigating possible placement of the child with relatives suggested by the parent, respondingto the parent's inquiries and facilitating telephone contact between the parent and child"(Matter of James J. [James K.], 97 AD3d at 937 [internal quotation marks and citationsomitted]; see Matter of Marquise JJ.[Jamie KK.], 91 AD3d 1137, 1138-1139 [2012], lv denied 19 NY3d 801 [2012];Matter of Hailey ZZ. [Ricky ZZ.],85 AD3d 1265, 1266 [2011], affd 19 NY3d 422 [2012]). Here, a caseworkertestified to receiving a letter from Charles in November 2009, after Jessalyn had been placed infoster care, indicating that the mother had neglected the child and stating that his daughter wouldbe better off being allowed to live with a family member as opposed to being placed in fostercare. Petitioner's caseworker acknowledged knowing that Charles's brother had sought custody ofJessalyn in Family Court and admits not investigating whether allowing the child to reside withthis individual would have been preferable to her being placed in foster care. Moreover,petitioner's caseworker testified that Charles requested visitation with the child and stated that hewould seek custody upon his release from prison.[FN3]We also note that despite Charles's efforts to secure visitation with Jessalyn, petitioner'scaseworker did not attempt to arrange any contact between him and the child, nor did she meetwith Charles.
While Charles' incarceration undoubtedly posed significant problems for petitioner inpromoting a constructive relationship with his daughter, that circumstance alone does not relievethe agency of its statutory obligations in that regard (see Matter of James J. [James K.],97 AD3d at 936-937). Here, there is simply no evidence indicating that petitioner's caseworkermade more then a cursory attempt to promote a constructive relationship between Charles and hisdaughter and, for that reason, the petition against him must be dismissed (see Matter of Shi'ann FF., 47 AD3d1133, 1135 [2008]; Matter of Jawan Y., 274 AD2d 696, 697-698 [2000];compare Matter of James J. [James K.], 97 AD3d at 937-937).
Rose, J.P., Lahtinen, Spain and McCarthy, JJ., concur. Ordered that the order entered May 9,2011 finding that respondent Roger I. abandoned Arianna I. is affirmed, without costs. Orderedthat the appeals from the orders entered May 10, 2011 are dismissed, without costs. Ordered thatthe order entered July 25, 2011 finding that respondent Charles K. permanently neglectedJessalyn J. and terminated his parental rights is reversed, on the law, without costs, and petitiondismissed. Ordered that the order entered July 29, 2011 terminating the parental rights ofrespondent Jessica J. is modified, on the law and facts, without costs, by reversing so muchthereof as terminated her parental rights; matter remitted to the Family Court of Cortland Countyfor further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.
Footnote 1: The appeals by the mother,Charles and the attorney for the children from the fact-finding orders must be dismissed becauseno appeal lies as of right from a nondispositional order in a permanent neglect proceeding (see Matter of Alyssa L. [Deborah K.],93 AD3d 1083, 1085 [2012]). However, their appeals from the dispositional orders bring upfor review the appeals from the fact-finding orders (see Matter of Chase F. [Michael G.], 91 AD3d 1057, 1058 [2012],lv denied 19 NY3d 801 [2012]).
Footnote 2: Before Arianna was removedfrom the mother's care, Roger frequently visited with the child, often on a weekly basis.
Footnote 3: In fact, Charles filed apetition—one that was ultimately dismissed in Family Court—attempting to havethe child placed with a family member.