| Matter of Asianna NN. (Kansinya OO.) |
| 2014 NY Slip Op 05471 [119 AD3d 1243] |
| July 24, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 In the Matter of Asianna NN. and Another, ChildrenAlleged to Be Permanently Neglected. Albany County Department of Children, Youthand Families, Respondent; Kansinya OO., Appellant. |
Sandra M. Colatosti, Albany, for appellant.
James J. Green, Albany County Department of Children, Youth and Families,Albany, for respondent.
Carol R. Stiglmeier, Albany, attorney for the children.
Gleason, Dunn, Walsh & O'Shea, Albany (Brendan C. O'Shea of counsel), forGail W., intervenor.
Nancy E. Stroud, Latham, for Christine OO. and Andrew OO.
Garry, J. Appeals (1) from an order of the Family Court of Albany County (M.Walsh, J.), entered March 26, 2012, which granted petitioner's application, in aproceeding pursuant to Social Services Law § 384-b, to adjudicaterespondent's children to be permanently neglected, (2) from an order of said court,entered January 3, 2013, which terminated respondent's parental rights, and (3) from anamended order of said court, entered May 16, 2013, which, among other things, grantedpetitioner's motion to modify the prior order of disposition by committing the care,custody and guardianship of Asianna NN. to her maternal grandparents.
Respondent is the mother of two children (born in 2005 and 2006). In September2007, the maternal grandparents arrived at respondent's home in mid-afternoon,immediately noticed that something was wrong with the younger child—then 11months old—and took her to the hospital. The child was admitted in criticalcondition with bilateral subdural hematomas, retinal hemorrhaging and other injuriesthat, according to the treating medical providers, indicated shaken baby syndrome andblunt force trauma. Petitioner's caseworker later testified that the child had "obvious"injuries, with extensive bruises on her face and abdomen and dried blood on her ears.Respondent maintained, however, that she had noticed nothing wrong with the childwhile caring for her earlier that day other than a fever; she said that she did not knowhow the child was injured and could not think of anyone who might have harmedher.[FN1]Respondent's paramour ultimatelyadmitted that he had spent the night in the apartment and had violently shaken the childearly that morning.
Petitioner commenced proceedings pursuant to Family Ct Act article 10 to adjudicateboth of respondent's children to be abused based on her failure to protect them from theparamour and to seek medical attention for the younger child. Upon respondent'sconsent, the children were temporarily removed and placed in petitioner's care andcustody. The temporary order of removal was later modified to place the older child inthe custody of the maternal grandparents, where she still remains. The younger child washospitalized for several weeks in a pediatric intensive care unit, transferred to arehabilitation facility and, after several months, placed in the pre-adoptive foster homewhere she now resides. She is diagnosed with a traumatic brain injury and continues tosuffer from one-sided paralysis, cognitive deficits and other long-term consequences ofthe assault.
Following a joint trial, the paramour was convicted in early 2009 of reckless assaultof a child; respondent was convicted of endangering the welfare of a child and sentencedin March 2009 to a one year jail term. Shortly thereafter, Family Court adjudicated bothchildren to be abused pursuant to respondent's consent without admission. In August2009, while respondent [*2]was serving her sentence,petitioner commenced this permanent neglect proceeding. Following respondent's releasein November 2009, a fact-finding hearing was held on multiple days between May 2010and February 2011. In March 2012, Family Court adjudicated both children to bepermanently neglected; following a dispositional hearing, the court terminatedrespondent's parental rights and placed both children in petitioner's custody. Petitionersubsequently moved to modify the order of disposition to commit the custody andguardianship of the older child to the maternal grandparents, and this motion wasgranted. Respondent appeals from the order of fact-finding and the order and amendedorder of disposition.
Contrary to respondent's assertion, the record demonstrates that petitioner exercisedthe requisite diligent efforts to encourage and strengthen her relationship with thechildren (see Social Services Law § 384-b [7]; Matter of StarLeslie W., 63 NY2d 136, 142 [1984]). Respondent concedes that petitioner offeredher a range of rehabilitative services, including, among other things, preventive services,domestic violence counseling and visitation assistance; however, she asserts that theseservices were inadequately goal-specific and did not satisfy petitioner's duty to provideservices particularly tailored to "ameliorate the problems preventing discharge of thechild[ren] to [her] care" (Matterof Hailey ZZ. [Ricky ZZ.], 19 NY3d 422, 429 [2012] [internal quotation marksand citation omitted]). Petitioner counters that its inability to obtain more individualizedrecommendations was the direct consequence of respondent's delay in undergoing arecommended psychological evaluation and family assessment. Petitioner's caseworkertestified that such an assessment was required to identify mental health issues that mighthave contributed to respondent's initial failure to seek medical treatment and her allegedongoing failure thereafter to recognize the severity of the child's condition and acceptresponsibility for her role in causing her injuries. The record confirms that for more thana year, petitioner repeatedly offered to arrange the assessment, explained the need for itand advised respondent that her refusal to participate was hindering reunification withher children; respondent nevertheless refused to cooperate on the ground that her defensecounsel had advised her not to do so until the criminal prosecution was resolved.Following her conviction in 2009, respondent did undergo the evaluation, but was thenincarcerated almost immediately thereafter. Petitioner was not required to providerehabilitative services while respondent was incarcerated (see Social ServicesLaw § 384-b [7] [f] [3]; Matter of Havyn PP. [Morianna RR.], 94 AD3d 1359, 1361[2012]; Matter of Kaiden AA.[John BB.], 81 AD3d 1209, 1210 [2011]). In view of the broad range ofservices that petitioner provided, together with respondent's resistance to the mentalhealth evaluation, we find no error in Family Court's determination that petitionersatisfied its statutory duty (see generally Matter of Sheila G., 61 NY2d 368, 385[1984]).
Respondent next contends that petitioner did not prove by clear and convincingevidence that she "failed 'substantially and continuously or repeatedly to maintain contactwith or plan for the future of the child[ren]' " (Matter of James J. [James K.],97 AD3d 936, 938 [2012], quoting Social Services Law § 384-b [7][a]). It is uncontroverted that respondent has maintained an affectionate bond with bothchildren, visiting them consistently and as frequently as she was permitted to do so.However, a finding of permanent neglect may be based on either a showing of a failureto plan or to maintain contact; merely maintaining contact may not suffice (see Matter of Chorus SS. [ElatishaSS.], 93 AD3d 1097, 1098 [2012], lv denied 19 NY3d 807 [2012]; Matter of Jyashia RR. [JohnVV.], 92 AD3d 982, 984 [2012]). Here, petitioner contends that respondentfailed to plan for her children's future by, among other things, delaying the psychologicalevaluation, failing to meaningfully engage in all of the services offered to her and, mostsignificantly, failing to take responsibility for and gain insight into the problems that ledto the children's removal and thereafter prevented their return.
In this regard, respondent contends that her delay in undergoing the psychologicalassessment should not have counted against her, as she was exercising her constitutionalprivilege against self-incrimination. This privilege applies in Family Court proceedings,but does not permit a general refusal to answer all inquiries, and may be asserted only if"a direct answer by the witness confronts him or her with a substantial and real danger ofcriminal prosecution" (Matter of Ashley M., 256 AD2d 825, 826 [1998]; seeMatter of Gladys H., 235 AD2d 841, 842 [1997]). Here, respondent was indisputablyconfronted with an ongoing criminal prosecution, and, as the assessment was intended toresult in a report to petitioner, respondent's communications would not have beenprotected by the evidentiary privilege applicable in confidential therapeutic settings(see generally State of New York v General Elec. Co., 201 AD2d 802, 803[1994]; compare Matter of Ashley M., 256 AD2d at 826). It was not clearlyestablished, however, that respondent's participation in the assessment would necessarilyhave required prejudicial admissions. The psychologist who ultimately conducted theassessment testified that his purpose in such inquiries was to assess the need for services,and not to determine culpability; as such, he stated that he avoided "legal issues" and didnot challenge the parent's presentation of events or press for factual details. Further, evenwhen properly asserted, a parent's exercise of the privilege in Family Court permits thetrier of fact to draw the strongest negative inference supported by the evidence (see Matter of Michael U. [MarcusU.], 110 AD3d 821, 823 [2013]; Matter of Rauss v Johnson, 243 AD2d849, 850 [1997]). Finally, as the expeditious resolution of proceedings involving thewelfare of children is strongly favored, parents' rights in this setting are deemedsubordinate to the purpose of protecting children, for which Family Ct Act article 10 wasenacted (see Family Ct Act § 1049; Matter of Joseph DD.,300 AD2d 760, 766 [2002], lv denied 100 NY2d 504 [2003]). Accordingly, inconsidering these factors upon review, we find no abuse of discretion in Family Court'sdetermination that, by refusing to participate in the assessment for more than a year,respondent placed her own needs ahead of those of her children in a manner thatconstituted a failure to plan for their future (see generally Matter of Emily I., 50 AD3d 1181,1181-1182 [2008], lv denied 10 NY3d 712 [2008]; Matter of GermaineB., 86 AD2d 847, 848 [1982]).
As respondent argues, the record reveals that she has engaged in some of the servicesoffered and, as noted above, she has been quite consistent with visitation. However, evenwith committed contact, a parent's ongoing refusal or inability to acknowledge andcorrect conditions that required the children's removal in the first instance may bedeemed to constitute a failure to plan for their future (see Matter of Alysheionna HH. [Tara II.], 101 AD3d 1413,1415 [2012], lv denied 20 NY3d 861 [2013]; Matter of Tailer Q. [Melody Q.], 86 AD3d 673, 674[2011]). In the course of planning for respondent's safe reunification with her children,petitioner repeatedly [*3]encouraged her to acknowledgeher responsibility for the younger child's injuries, in that she allowed theparamour—whom she knew to have serious anger management issues—tohave contact with the child, and then failed to seek immediate medical attention for her.Respondent steadfastly refused to admit responsibility for such wrongdoing. Even at thetime of the fact-finding hearing—three years after the children wereremoved—respondent continued to deny that she had failed to seek timely medicalattention for the child, insisting that she had taken her to the hospital within minutes afternoticing that "[s]he was limp and her eyes were kind of rolling back in her head," andoffering no adequate explanation as to how she had failed to notice this condition earlierin the day, in the course of feeding and caring for the child.
The record further demonstrates an ongoing tendency on respondent's part to deny orminimize the seriousness of the younger child's condition. Upon admission, the child'sinjuries were so severe that she was near death, could no longer walk or crawl, had lostthe ability to swallow and suck, and was fed through a tube; she recovered only graduallyand continues to suffer serious long-term deficits. In the months following the assault,respondent told providers that the child could do things that she was not able to do, suchas sitting independently and eating solid foods. While the child was still being tube-fed,respondent fed her a hard cookie, and told a caseworker that she had also given herchips. Despite meetings with the child's medical providers to explain her medicalcondition, respondent failed to understand why this conduct was a problem. Taken as awhole, we thus find that clear and convincing record evidence supports Family Court'sconclusion that respondent failed to substantially plan for the children's future in that shedid not "take meaningful steps toward alleviating the conditions that led to the children'sremoval from their home in the first instance" (Matter of Neal TT. [Deborah UU.], 97 AD3d 869, 871[2012] [internal quotation marks and citations omitted]; see Matter of Kayden E. [LuisE.], 111 AD3d 1094, 1097 [2013], lv denied 22 NY3d 862 [2014];Matter of Alysheionna HH. [Tara II.], 101 AD3d at 1414-1415; Matter of Vivian OO., 34AD3d 1111, 1114 [2006], lv denied 8 NY3d 808 [2007]).
Finally, respondent contends that her request for a suspended judgment should havebeen granted. " 'Following an adjudication of permanent neglect, the soleconcern at a dispositional hearing is the best interests of the child and there is nopresumption that any particular disposition, including the return of a child to a parent,promotes such interests' " (Matter of Johanna M. [John L.], 103 AD3d 949, 951[2013], lv denied 21 NY3d 855 [2013], quoting Matter of Angelica VV., 53AD3d 732, 733 [2008]; see Family Ct Act § 631). With regardto the younger child, the record reveals ongoing concerns relative to respondent'sjudgment and ability to meet the child's substantial and complex special needs. Incontrast, the testimony established that the foster mother, who had cared for the youngerchild during the course of the several years following her release from the rehabilitationfacility, excelled in understanding and meeting the child's needs. She had undergonemany hours of training, coordinated the younger child's complicated schedule of multipleappointments with medical providers and therapists, and acted as an independentadvocate by seeking out additional beneficial services, such as orthopedic treatment atShriner's Hospital in Massachusetts. By all accounts, strong and loving bonds existbetween the younger child and the foster mother, as well [*4]as other children in the foster home, where the child hasspent almost all of her life. Given this bond, the foster mother's demonstratedcompetence, and her desire to adopt the younger child, we find a sound and substantialbasis in the record for Family Court's determination that it was in the younger child's bestinterests to free her for adoption (see Matter of Angelina Jessie Pierre L. [Anne Elizabeth PierreL.], 114 AD3d 471, 472 [2014], lv denied 23 NY3d 901[2014]).[FN2]
We cannot make the same finding with regard to the older child. The dispositionalproceedings focused almost exclusively on the younger child's needs and the relativeabilities of respondent and the foster mother to satisfy them; the older child was onlyrarely mentioned in the course of the proceedings, and her best interests were notadequately addressed. There was no testimony as to whether this child, attendingkindergarten at the time of the dispositional hearing, had needs that respondent could notfulfill or that the grandparents were better able to satisfy. Moreover, unlike the youngerchild, the older child has lived with respondent's close-knit family throughout theproceedings and thus had frequent—albeit supervised—contact withrespondent. Given this close contact, it was not shown that this child's stay outsiderespondent's custody had so damaged or weakened the parent/child relationship that itwas in her best interests to sever it. On the contrary, the maternal grandmother testifiedwithout contradiction that respondent saw the older child almost daily, took on aparenting role when they were together and that the two [*5]enjoyed each other's company and had a close, lovingmother/child relationship.
Respondent's request for a suspended judgment may serve the older child's bestinterests by offering respondent an opportunity to increase their unsupervised contact anddemonstrate whether she is capable of caring for the child (see Family Ct Act§§ 631 [b]; 633). However, the scant record evidence pertaining to theolder child prevents this Court from making that determination (compare Matter of Arianna I.[Roger I.], 100 AD3d 1281, 1283-1284 [2012]; Matter of Eric G., 59 AD3d785, 788 [2009]). Therefore, despite our reluctance to add further delay to thealready lengthy period during which this child has lived without permanency, we reversethe orders of disposition insofar as they pertain to the older child, and remit for a newdispositional hearing to address her best interests (see Matter of Krystal B. [Thomas B.], 77 AD3d 1110, 1111[2010]).[FN3]
Lahtinen, J.P., McCarthy, Lynch and Clark, JJ., concur. Ordered that the orderentered March 26, 2012 is affirmed, without costs. Ordered that the order enteredJanuary 3, 2013 and the amended order entered May 16, 2013 are modified, on the law,without costs, by reversing so much thereof as terminated respondent's parental rights asto Asianna NN. and as awarded the care, custody and guardianship of Asianna NN. toher maternal grandparents; matter remitted to the Family Court of Albany County forfurther proceedings not inconsistent with this Court's decision and, pending saidproceedings, the terms of the amended order entered May 16, 2013 that awarded care,custody and guardianship of Asianna NN. to the maternal grandparents shall remain ineffect on a temporary basis; and, as so modified, affirmed.
Footnote 1:Respondent initially saidthat she had taken the child to a hospital that morning for treatment of the fever, butwhen it was later determined that there were no records of such treatment, admitted thatthis claim was not true. She further claimed that the child's bruises resulted from a fallfrom a bed.
Footnote 2:We note withconsiderable concern, however, that it appears that petitioner may be imposing a blanketprohibition against unsupervised visitation during the course of termination proceedings.The instant proceeding was quite protracted; the fact-finding hearing consumed almost ayear, and an additional 13 months ensued thereafter before Family Court rendered itswritten decision (apparently resulting, at least in part, from a transcript problem).Additional time was then required for the dispositional phase, resulting in the passage ofmore than 3
Footnote 3:At the time of entry ofthe modified order of disposition, the maternal grandparents intended to commenceadoption proceedings within six months. This Court thereafter stayed the entry of anyfinal order of adoption pending the completion of this appeal.