| Matter of Alysheionna HH. (Tara II.) |
| 2012 NY Slip Op 08848 [101 AD3d 1413] |
| December 20, 2012 |
| Appellate Division, Third Department |
| In the Matter of Alysheionna HH., a Child Alleged to be Neglected.Cortland County Department of Social Services, Respondent; Tara II., Appellant. (And AnotherRelated Proceeding.) |
—[*1] Ingrid Olsen Tjensvold, Cortland County Department of Social Services, Cortland, forrespondent. Randolph V. Kruman, Cortland, attorney for the child.
Malone Jr., J. Appeals from two decisions and two orders of the Family Court of CortlandCounty (Campbell, J.), entered October 31, 2011, November 22, 2011, December 7, 2011 andFebruary 1, 2012, which, among other things, granted petitioner's application, in a proceedingpursuant to Social Services Law § 384-b, to adjudicate Alysheionna HH. to be apermanently neglected child, and terminated respondent's parental rights.
Respondent's daughter (born in 2009) was removed from respondent's custody at birth. [*2]The child was adjudicated, upon consent, to be a neglected childand placed with petitioner.[FN1]Following petitioner's June 2011 commencement of this Social Services Law § 384-bproceeding, Family Court found, after a hearing, that the child was permanently neglected andterminated respondent's parental rights. Respondent appeals.[FN2]
Respondent does not dispute that petitioner met its threshold burden of establishing that it"made diligent efforts to encourage and strengthen the parental relationship" (Social ServicesLaw § 384-b [7] [a]; see Matter ofHailey ZZ. [Ricky ZZ.], 19 NY3d 422, 429 [2012]). Instead, she contends that petitionerdid not establish by clear and convincing evidence "that respondent failed—for a period ofmore than a year—to 'substantially and continuously or repeatedly . . .maintain contact with or plan for the future of the child, although physically and financially ableto do so' " (Matter of Jyashia RR. [JohnVV.], 92 AD3d 982, 984 [2012], quoting Social Services Law § 384-b [7] [a];see Family Ct Act § 614 [1] [d]).
Petitioner acknowledges that respondent has maintained contact with the child throughouther placement with petitioner, but argues that respondent failed to adequately plan for the child'sfuture. Importantly, "contact and planning are alternative elements, and proof of failure toperform one [of these elements] is sufficient to sustain a finding of permanent neglect"(Matter of Jyashia RR. [John VV.], 92 AD3d at 984 [internal quotations marks andcitations omitted]; see Matter of ChorusSS. [Elatisha SS.], 93 AD3d 1097, 1098 [2012], lv denied 19 NY3d 807[2012]). Here, notwithstanding respondent's participation in some of the proffered services, thetestimony of, among others, her caseworker, a family educator who monitored respondent's visitswith the child, and the child's foster parents reveals that her parenting skills did not meaningfullyimprove, her employment was intermittent, her living arrangements remained unstable, and sheconsistently failed to accept the role that her conduct played in the removal of her children.Although respondent claims that she improved in all of these areas, we defer to Family Court'scredibility assessments (see Matter ofSummer G. [Amy F.], 93 AD3d 959, 961 [2012]; Matter of Syles DD. [Felicia DD.], 91 AD3d 1054, 1055 [2012],lv denied 18 NY3d 810 [2012]), and find that the court's conclusion that respondentpermanently neglected the child is supported by a sound and substantial basis in the record.
Respondent next contends that Family Court abused its discretion in ordering termination ofher parental rights rather than a suspended judgment because respondent had made significantstrides in the month since the fact-finding hearing. However, the testimony at the [*3]dispositional hearing established that respondent's situation had notimproved; indeed, both her employment and living arrangements remained unstable. On the otherhand, the foster parents—with whom the child has resided since birth and who wish toadopt her—continued to provide a stable, nurturing home for the child and facilitate herrelationship with her brother and her grandmother. Accordingly, Family Court's decision toterminate respondent's parental rights and free the child for adoption is in the child's best interestsand is not an abuse of discretion (seeMatter of Crystal JJ. [Sarah KK.], 85 AD3d 1262, 1264 [2011], lv denied 17NY3d 711 [2011]; Matter of KellcieNN. [Sarah NN.], 85 AD3d 1251, 1253 [2011]).[FN3]
Mercure, J.P., Lahtinen, Stein and Garry, JJ., concur. Ordered that the appeals from thedecisions entered October 31, 2011 and December 7, 2011 and from the order entered November22, 2011 are dismissed, without costs. Ordered that the order entered February 1, 2012 isaffirmed, without costs.
Footnote 1: While respondent was pregnantwith the child at issue, Family Court adjudged her other child to be permanently neglected andplaced him with a relative.
Footnote 2: Respondent's appeals from thedecisions entered October 31, 2011 and December 7, 2011 must be dismissed as no appeal liesfrom a decision of the court (see CPLR 5512 [a]). The November 22, 2011 fact-findingorder is also not appealable (see Matterof Alyssa L. [Deborah K.], 93 AD3d 1083, 1084-1085 [2012]). However, FamilyCourt's findings may be challenged in the context of respondent's appeal from the February 1,2012 dispositional order (see Matter ofArianna I. [Roger I.], 100 AD3d 1281, 1282 n 1 [2012]).
Footnote 3: The father previously executed ajudicial surrender of his parental rights.