| Matter of Julian P. (Melissa P.—Zachary L.) |
| 2013 NY Slip Op 03881 [106 AD3d 1383] |
| May 30, 2013 |
| Appellate Division, Third Department |
| In the Matter of Julian P. and Others, Children Alleged tobe Abused and Neglected Children. Columbia County Department of Social Services,Appellant;Melissa P., Respondent, and Zachary L., Appellant. |
—[*1] Sandra M. Colatosti, Albany, for Zachary L., appellant. Alexander Bloomstein, Hillsdale, attorney for the children.
Garry, J. Appeals from an order of the Family Court of Columbia County (Nichols,J.), entered May 23, 2011, which, among other things, partially granted petitioner'sapplication, in a proceeding pursuant to Family Ct Act article 10-A, to approve thepermanency plans for the subject children.
Respondent Melissa P. (hereinafter the mother) and respondent Zachary L.(hereinafter the father) are the parents of three children (born in 2004, 2006 and 2009).In March 2010, petitioner obtained an order of protection and commenced neglectproceedings against the mother [*2]arising fromallegations that she had slapped the oldest child. Upon the mother's admission, thechildren were subsequently adjudicated to be neglected and placed in the custody of thematernal grandmother, while the mother was placed under a six-month order ofsupervision. Following a hearing in November 2010, Family Court approved apermanency goal of returning the children to the mother. Shortly thereafter, however, theyoungest child was discovered to have several unexplained broken bones.[FN1]The court granted petitioner's resulting application for temporary removal of the children,issued orders of protection on the children's behalf, including an order relative to thefather, and ordered supervised visitation between the children and the father. Petitionerthen commenced abuse and neglect proceedings against the mother and grandmother,and against the mother's live-in paramour.
The father subsequently participated in a permanency hearing held in April 2011. Atthis time petitioner was recommending continued placement, with a permanency goal ofreturning the children to a parent. At the end of the hearing, Family Court continued thechildren's placement and approved petitioner's goal of reunification as to the mother only.As to the father, the court disapproved the goal of reunification, directed petitioner tocommence a permanent neglect proceeding to terminate his parental rights andsuspended his supervised visitation. Petitioner and the father appeal, and the appellateattorney for the children supports their contentions.
Family Court erred by imposing separate and contradictory permanency goals on themother and father. Upon concluding at the end of a permanency hearing that a child isnot to be returned immediately to a parent, the court must determine whether thepermanency goal should be approved or modified and may select among five statutorypermanency goals (see Family Ct Act § 1089 [d] [2] [i]; Matter of Jacelyn TT. [ToniaTT.—Carlton TT.], 80 AD3d 1119, 1120 [2011]). These "goal[s] arelisted as alternatives, with the court to choose only one. Nothing in the statuteindicates that the court may select and impose on the parties two or more goalssimultaneously" (Matter ofDakota F. [Angela F.], 92 AD3d 1097, 1099 [2012] [emphasis added]). Thestatute contemplates the commencement of termination proceedings against a parent onlywhen the permanency goal is "placement for adoption" (Family Ct Act § 1089 [d][2] [i] [B]). To require such proceedings as to one parent where, as here, the permanencygoal is reunification with the other parent is not only inconsistent with the statutory goalsbut also with the overall goal of permanent neglect proceedings, to further the children'sbest interests by freeing them for adoption when positive parental relationships no longerexist (see Social Services Law § 384-b [1] [b]; Matter of Cadence SS. [AmyRR.—Joshua SS.], 103 AD3d 126, 128-129 [2012], lv denied 21NY3d 853 [Apr. 30, 2013]; see also Matter of Latif HH., 248 AD2d 831,831-832 [1998]). Thus, Family Court lacked authority to direct petitioner to commence atermination proceeding that—even if successful—would not result infreeing the children for adoption.
Further, the father's supervised visitation should not have been suspended. As heacknowledged, the father had visited the children infrequently for a lengthy period beforethey [*3]were placed in foster care.[FN2]However, after supervised visits were ordered upon their removal, he regularly attendedweekly visits and was described by visit supervisors as loving and affectionate, veryengaged and "extremely appropriate" with the children. He participated in petitioner'sservice plan reviews and frequently contacted caseworkers for information about thechildren's health and progress. Moreover, although his efforts to address long-standingsubstance abuse issues had been sporadic and unsuccessful, there was no indication thatthese issues had caused difficulties during his direct contact with the children, and he hadscheduled an appointment for admission to inpatient treatment at the time of thepermanency hearing. As the record was thus devoid of "compelling reasons andsubstantial evidence that [the father's] visitation would be detrimental or harmful to thechild[ren]'s welfare," the suspension of his supervised visits was improper (Matter of Victoria X., 34AD3d 1117, 1118 [2006], lv denied 8 NY3d 806 [2007] [internal quotationmarks and citation omitted]; seeMatter of Laware v Baldwin, 42 AD3d 696, 697 [2007]; compare Matter of Telsa Z.[Denise Z.], 90 AD3d 1193, 1194-1195 [2011], lv denied 18 NY3d 806[2012]; Matter of Hobb Y.,56 AD3d 998, 999 [2008]).
Finally, we agree with the father that Family Court erred in failing to engage inage-appropriate consultation with the children, the oldest of whom was six years of ageat the time of the permanency hearing. The attorney for the children opposed the goal ofreunification with a parent, but did not state a basis for this position, nor indicate thechildren's preferences regarding the father. Family Ct Act § 1089 (d) does notrequire personal consultation with young children, but the court is required to find someage-appropriate means of ascertaining their wishes, and this information was lackinghere (see Matter of Dakota F. [Angela F.], 92 AD3d at 1098; Matter of Rebecca KK., 61AD3d 1035, 1037 [2009]; 22 NYCRR 205.17 [e]).
Rose, J.P., Lahtinen and Spain, JJ., concur. Ordered that the order is modified, on thelaw and the facts, without costs, by reversing so much thereof as directed petitioner tocommence a proceeding to terminate the parental rights of respondent Zachary L. and assuspended his supervised visitation, and, as so modified, affirmed.
Footnote 1: At this time, the motherand her paramour were apparently residing in the same home as the grandmother and thechildren. The cause of the youngest child's injuries had not been established at the timeof the proceedings leading to this appeal.
Footnote 2: The record does notreveal what the father's custodial rights were during this time, but indicates that, in 2006,supervised visitation was ordered through Family Ct Act article 6 proceedings.Significantly, there was no suggestion that the youngest child's injuries resulted from anyact or omission on his part.