| Matter of Arianna BB. (Tracy DD.) |
| 2013 NY Slip Op 06758 [110 AD3d 1194] |
| October 17, 2013 |
| Appellate Division, Third Department |
| In the Matter of Arianna BB., a Child Alleged to bePermanently Neglected. Tompkins County Department of Social Services, Respondent;Tracy DD., Appellant. (Proceeding No. 1.) In the Matter of Arianna BB., a Child Allegedto be Permanently Neglected. Tompkins County Department of Social Services,Respondent; Carver BB., Appellant. (Proceeding No. 2.) |
—[*1] Thomas H. Kheel, Ithaca, for Carver BB., appellant. Joseph R. Cassidy, Tompkins County Department of Social Services, Ithaca, forrespondent. Susan B. McNeil, Ithaca, attorney for the child.
Peters, P.J. Appeals from two orders of the Family Court of Tompkins County(Rowley, J.), entered September 17, 2012, which granted petitioner's applications, in twoproceedings pursuant to Social Services Law § 384-b, to adjudicate Arianna BB.to be a permanently neglected child, and terminated respondents' parental rights.
Respondent Tracy DD. (hereinafter the mother) and respondent Carver BB.(hereinafter the father) are the parents of a daughter born in 2009. Petitioner removed thechild from respondents' care when she was 11 months old based upon, among otherthings, their parental history of substance abuse. At the time of the child's removal, thefather was incarcerated at a local jail and was soon after extradited to Virginia tocommence serving a sentence there. Thereafter, each parent stipulated to a finding ofneglect and consented to a dispositional order requiring them to, among other things,successfully complete the Tompkins County Family Treatment Court program. In May2011, petitioner commenced these permanent neglect proceedings against respondents.Following a fact-finding and dispositional hearing, Family Court adjudicated the child tobe permanently neglected and terminated respondents' parental rights. Respondentsappeal.
We reject the father's assertion that his due process rights were violated when FamilyCourt proceeded with a portion of the fact-finding hearing in his absence. Although aparent in a proceeding seeking to terminate parental rights has a right to be present for allstages of the proceeding, that right is not absolute (see Matter of Eileen R. [Carmine S.], 79 AD3d 1482, 1483[2010]; Matter of JasperQQ., 64 AD3d 1017, 1019 [2009], lv denied 13 NY3d 706 [2009]). Onthe second day of the fact-finding hearing, the father's counsel appeared and informed thecourt that his client would not be present due to health reasons. Rather than request anadjournment, counsel affirmed that the father's attendance at the hearing "would not berequired today," requested another hearing date—which the court agreed toschedule—so as to allow the father to testify, and thereafter actively participated inthe hearing.[FN1]Under these circumstances, we discern no error in Family Court's decision to proceedwith the hearing in the father's absence or any prejudice inuring to the father as a resultthereof (see Matter of KeyannaAA., 35 AD3d 1079, 1081 [2006]; Matter of Curtis N., 288 AD2d 774,776 [2001], lv denied 97 NY2d 610 [2002]; Matter of Andrew MM., 279AD2d 654, 655-656 [2001]; Matter of Jennifer DD., 227 AD2d 675, 676 [1996];see also Matter of Paige WW.[Charles XX.], 71 AD3d 1200, 1205 [2010]).
Turning to the merits, we find that petitioner established by clear and convincingevidence that respondents permanently neglected their daughter. The threshold inquiry ina permanent neglect proceeding is whether the agency made "diligent efforts toencourage and strengthen the parental relationship" (Social Services Law § 384-b[7] [a]; see Matter of Hailey ZZ.[Ricky ZZ.], 19 NY3d 422, 429 [2012]; Matter of Damian L. [FrederickL.], 100 AD3d [*2]1193, 1194 [2012]). Once thatshowing has been made, petitioner must prove that the parent failed to maintain contactwith the child or plan for his or her future for the requisite time period (see SocialServices Law § 384-b [7] [a]; Matter of Hailey ZZ. [Ricky ZZ.], 19 NY3dat 429).
With respect to the mother, the problems that led to the removal of the child includedher substance abuse, mental health issues, criminal activity, history of domestic violencewith the father and lack of appropriate housing for the child. Petitioner created a serviceplan to address these issues and referred the mother to numerous substance abusetreatment programs, various forms of mental health counseling, psychosocial andpsychological evaluations and domestic violence services. In addition, petitionerarranged for and facilitated supervised visitations with the child, provided transportationassistance, attempted to assist the mother in obtaining housing, met with the mother on aregular basis, and held team meetings in conjunction with the Tompkins County FamilyTreatment Court and the mother's various service providers to review the family'sprogress and whether additional services would be needed. Although the mother arguesthat greater emphasis should have been placed on mental health treatment, the recordreflects that petitioner consistently made reasonable attempts to assist the mother inaddressing her mental health issues, but that it was her frequent relapses and criminalbehavior that caused disruption or alteration of the mental treatment she might havereceived. Thus, we find that petitioner established by clear and convincing evidence thatit made diligent efforts to assist the mother in overcoming the problems that led to thechild's removal (see Matter ofHavyn PP. [Morianna RR.], 94 AD3d 1359, 1360-1361 [2012]; Matter of Chorus SS. [ElatishaSS.], 93 AD3d 1097, 1098 [2012], lv denied 19 NY3d 807 [2012]; Matter of Sharon V. v MelanieT., 85 AD3d 1353, 1354-1355 [2011]).[FN2]
We also find clear and convincing evidence that, despite petitioner's diligent effortsin this regard, the mother failed to plan for the child's future. "[F]ailure to correct theconditions that led to the removal of the child constitutes a failure to plan for the child'sfuture" (Matter of DestinyCC., 40 AD3d 1167, 1169 [2007] [internal quotation marks and citationsomitted]; see Matter of Tailer Q.[Melody Q.], 86 AD3d 673, 674, [2011]). While there is no dispute that themother maintained contact with the child and participated in various substance abuseprograms, both inpatient and outpatient, she was unable to remain sober for anyappreciable period of time during the more than one-year period preceding the filing ofthe permanent neglect petition. She tested positive for cocaine and marihuana in May2010 and, after serving a brief jail sentence, relapsed in August 2010 prior to entering aninpatient substance abuse program because, by her own admission, she was "going torehab anyway" and "might as well get high." Following her discharge from that program,the mother twice relapsed on crack cocaine. As a consequence of her conduct, a paroleviolation was filed against her and she was sentenced to a term of imprisonment whichextended through the fact-finding hearing. Furthermore, the mother had multipledocumented suicide attempts during the relevant period [*3]notwithstanding her participation in several mental healthtreatment programs. Given the mother's failure to meaningfully benefit from the servicesoffered to her and to correct the conditions that led to the child's removal, Family Courtproperly found that the mother permanently neglected her daughter (see Matter ofHavyn PP. [Morianna RR.], 94 AD3d at 1361-1362; Matter of Chorus SS.[Elatisha SS.], 93 AD3d at 1099; Matter of Summer G. [Amy F.], 93 AD3d 959, 961-962[2012]; Matter of Sharon V. v Melanie T., 85 AD3d at 1355).
The father does not challenge Family Court's threshold determination that petitionermade the requisite diligent efforts, but argues only that petitioner did not establish that hefailed to plan for the child's future. Like the mother, however, the father failed to takemeaningful steps to correct the conditions that led to the child's removal—namely,his substance abuse, criminal activity and history of domestic violence. He wasincarcerated at the time of the child's removal and, following his release in December2010, he resumed using crack cocaine with the mother. Moreover, just prior to the filingof the instant petition, he tested positive for four different substances, including cocaineand heroin. The father also failed to complete mandated mental health services as well asdomestic violence and anger management programs, continued to engage in domesticviolence with the mother, lost his housing and lacked any stable income. Furthermore,the father offered no plan for the child's future, and his failure to testify permitted FamilyCourt to draw the strongest possible inferences against him (see Matter of NassauCounty Dept. of Social Servs. v Denise J., 87 NY2d 73, 79 [1995]; Matter of Michael JJ. [GeraldJJ.], 101 AD3d 1288, 1290, 1291 [2012], lv denied 20 NY3d 860[2013]; Matter of JacobWW., 56 AD3d 995, 997 [2008]). To the extent that he now asserts that keepingthe child in foster care for an undetermined period of time while he attempts torehabilitate himself constitutes a viable plan, we simply cannot agree. Such a "plan" iscontrary to the child's best interests and antithetical to her need for permanency (see Matter of Johanna M. [JohnL.], 103 AD3d 949, 951 [2013], lv denied 21 NY3d 855 [2013]; Matter of Kaiden AA. [JohnBB.], 81 AD3d 1209, 1210-1211 [2011]). Accordingly, we find no basis todisturb Family Court's conclusion that the father permanently neglected the child byfailing to adequately and realistically plan for her future (see Matter of Johanna M.[John L.], 103 AD3d at 951; Matter of James J. [James K.], 97 AD3d 936, 938-939[2012]; Matter of Chorus SS. [Elatisha SS.], 93 AD3d at 1099; Matter ofKaiden AA. [John BB.], 81 AD3d at 1210-1211).
Finally, we reject respondents' contention that Family Court should have entered asuspended judgment in lieu of terminating their parental rights (see Family CtAct § 631). Although the mother completed a number of programs during her mostrecent incarceration, including alcohol and substance abuse treatment, she has a long andconsistent history of failing to benefit from such services. As for the father, although hehad successfully completed an inpatient substance abuse program, he thereafter relapsedon cocaine and was serving a sentence at a local jail. The child, who has been in fostercare for all but 11 months of her young life, has a strong bond with and is thriving in thecare of her foster parents, who intend to adopt her. Given all of the circumstances, we areof the view that Family Court properly found that termination of respondents' parentalrights was in the child's best interests (see Matter of Summer G. [Amy F.], 93AD3d at 962; Matter ofAngelina BB. [Miguel BB.], 90 AD3d 1196, 1198 [2011]; Matter of Crystal JJ. [SarahKK.], 85 AD3d 1262, 1264 [2011], lv denied 17 NY3d 711 [2011]).
Respondents' remaining contentions, to the extent not specifically addressed herein,have been examined and found to be lacking in merit.[*4]
Rose, Lahtinen and Garry, JJ., concur. Orderedthat the orders are affirmed, without costs.
Footnote 1: The father appeared atthe next hearing date, but elected not to testify and did not seek to reopen the mother'stestimony.
Footnote 2: We reject the mother'sclaim that petitioner breached its duty by continuing the child's placement with a fosterparent who thwarted her attempts to establish a relationship with the child (see Matter of Victorious LL.[Jonathan LL.], 81 AD3d 1088, 1090 [2011], lv denied 16 NY3d 714[2011]). The record reflects that the child was placed with a family member and, once itbecame evident that the placement was not appropriate, she was removed by petitionerand placed with her current foster family.