| Matter of Landon U. (Amanda U.) |
| 2015 NY Slip Op 07707 [132 AD3d 1081] |
| October 22, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Landon U., a Child Alleged to beNeglected. Cortland County Department of Social Services, Respondent; Amanda U.,Appellant. (Proceeding No. 1.) In the Matter of Amanda U.,Appellant, v Howard U., Respondent. (Proceeding No. 2.) In the Matter ofLandon U., a Child Alleged to be Permanently Neglected. Cortland County Departmentof Social Services, Respondent; Amanda U., Appellant. (Proceeding No.3.) |
A.L. Beth O'Connor, Cortland, for appellant.
Kathleen A. Sullivan, Cortland County Department of Social Services, Cortland, forCortland County Department of Social Services, respondent.
Natalie B. Miner, Homer, attorney for the child.
Clark, J. Appeals (1) from an order of the Family Court of Cortland County(Campbell, J.), entered May 14, 2013, which dismissed petitioner's application, inproceeding No. 2 pursuant to Family Ct Act article 8, for an order of protection, (2) fromtwo orders of said court, entered May 31, 2013 and June 24, 2013, which, among otherthings, granted petitioner's application, in proceeding No. 1 pursuant to Family Ct Actarticle 10, to adjudicate respondent's child to be neglected, and (3) from three orders ofsaid court, entered March 17, 2014 and March 25, 2014, which, among other things,granted petitioner's application, in proceeding No. 3 pursuant to Social Services Law§ 384-b, to adjudicate respondent's child to be permanently neglected, andterminated respondent's parental rights.
Amanda U. (hereinafter the mother) and respondent Howard U. (hereinafter thefather) are the divorced parents of Landon U. (born in 2012). In August 2010, followingproceedings in Broome County, the mother was found to have neglected her two olderchildren from a prior relationship. On April 12, 2012, the day of his birth, Landon(hereinafter the child) was taken into the custody of petitioner Cortland CountyDepartment of Social Services (hereinafter DSS). The next day, DSS filed a neglectpetition (proceeding No. 1), alleging that the mother derivatively neglected the child onthe basis of her prior neglect of her two older children (born in 2009 and 2010), theinsufficiency of her participation with regard to services, and her continuation in aviolent and volatile relationship with the father. Thereafter, the mother filed a familyoffense petition against the father (proceeding No. 2), alleging that he was harassing herwith multiple phone calls and text messages. A fact-finding hearing ensued, after whichFamily Court found that the mother derivatively neglected the child and dismissed themother's family offense petition. The mother thereafter agreed to continue custody of thechild with a relative.[FN1] [*2]Subsequently, DSS filed a petition alleging that the motherpermanently neglected the child and, accordingly, sought the termination of the mother'sparental rights (proceeding No. 3). After a fact-finding hearing, Family Court found thatthe mother permanently neglected the child and, following the dispositional hearing,determined that it was in the best interests of the child to terminate the mother's parentalrights. The mother appeals from the orders finding that she neglected and permanentlyneglected the child,[FN2] as well as the order dismissing themother's family offense petition.[FN3]
Based upon the record before us, we find that DSS met its burden to establish thatthe mother derivatively neglected the child. Evidence of the prior neglect of a child isadmissible to prove that the parent neglected another child (see Family Ct Act§ 1046 [a] [i]), "but may not provide the sole basis for a determination ofderivative neglect unless the parent's past conduct demonstrates [profound] fundamentalflaws in the [parent's] understanding of the duties of parenthood" such that there is asubstantial risk of harm for any child left in that parent's care (Matter of Alexander Z. [MelissaZ.], 129 AD3d 1160, 1163 [2015] [internal quotation marks omitted], lvdenied 25 NY3d 914 [2015]; see Matter of Brad I. [Brad J.], 117 AD3d 1242, 1243-1244[2014]). Additionally, "the prior neglect determination [must be] sufficiently proximatein time to reasonably conclude that the problematic conditions continue to exist" (Matter of Tradale CC., 52AD3d 900, 901 [2008]; accord Matter of Neveah AA. [Alia CC.], 124 AD3d 938,939 [2015]; see Matter ofXiomara D. [Madelyn D.], 96 AD3d 1239, 1240 [2012]).
Here, during the fact-finding hearing in the neglect proceeding, Family Court tookjudicial notice of an August 2010 order in which the mother was adjudged to haveneglected her two older children due to violently shaking the oldest child and failing toseek medical attention for him. As a result, that child sustained a subdural hemotoma andnow suffers from extreme cognitive delays and other related complications. Thesechildren have been in foster care in Broome County since August 2010. Given the levelof impairment of parental judgment that the mother demonstrated previously, we find thenearly two-year gap in time between the prior [*3]findingof neglect and the instant proceeding proximate enough to support a finding of derivativeneglect (see e.g. Matter of IlonniI. [Benjamin K.], 119 AD3d 997, 997-998 [2014], lv denied 24 NY3d914 [2015]; Matter of PaigeWW. [Charles XX.], 71 AD3d 1200, 1203 [2010]).
Furthermore, additional evidence also demonstrated that the mother failed to cure oradequately address, despite the availability of services—parenting classes,domestic violence services and mental health counseling, among others—theearlier identified deficiencies in her parenting skills that created a substantial risk of harmto the child. Tellingly, the mother had yet to progress to unsupervised visitations with theolder children for a number of reasons. Testimony from a variety of witnesses alsorevealed that the relationship between the mother and father was volatile and rife withphysical abuse, verbal abuse and many dueling orders of protection. The mother herselfdescribed the relationship as unhealthy. Despite this, the mother testified that she wastrying to work through her relationship with the father and had continued in a violent andvolatile relationship with him during the period of time before the child's birth (see Matter of Hailey XX. [AngelXX.], 127 AD3d 1266, 1268 [2015]). Thus, Family Court's determination thatthe mother derivatively neglected the child was supported by a preponderance of theevidence (see Matter of Alexander Z. [Melissa Z.], 129 AD3d at 1164; Matter of Sumaria D. [MadelynD.], 121 AD3d 1203, 1205-1206 [2014]; Matter of Xiomara D. [MadelynD.], 96 AD3d at 1240-1241).
Next, Social Services Law § 384-b (7) (a) defines a permanentlyneglected child as a child who is in the care of an authorized agency and whose parenthas failed, for a period of more than one year following the date such child came into thecare of an authorized agency, substantially and continuously or repeatedly to maintaincontact with or plan for the future of the child, although physically and financially able todo so, notwithstanding the agency's diligent efforts to encourage and strengthen theparental relationship (see Matter of Star Leslie W., 63 NY2d 136, 140 [1984]).Contrary to the position set forth by the mother on appeal, we find Family Court'sthreshold determination of diligent efforts to be supported by the record. Specifically, atthe fact-finding hearing, the testimony established that, in addition to facilitating regularvisitation with the mother and child aimed towards the goal of reunification—bothsupervised and monitored within the mother's home—DSS offered numerousservices including, but not limited to, parenting support, domestic violence counseling,mental health counseling, anger management, drug and alcohol abuse and nutritionaleating. In addition, the mother's caseworkers were frequently in contact with her toensure compliance with services and monitor her progress. Inasmuch as these effortswere "designed to address the problems that led to the child's removal, and to 'strengthenthe family relationship by such means as assisting the parent with visitation, providinginformation on the child's progress and development, and offering counseling and otherappropriate educational and therapeutic programs and services' " (Matter of Everett H. [NicoleH.], 129 AD3d 1123, 1125 [2015], quoting Matter of Carter A. [Courtney QQ.], 121 AD3d 1217, 1218[2014]), Family Court did not err in its determination that DSS established, by clear andconvincing evidence, that it made diligent efforts to encourage and strengthen themother's relationship with the subject child (see Matter of Kapreece SS. [Latasha SS.], 128 AD3d 1114,1115 [2015], lv denied 26 NY3d 903 [2015]; Matter of Aniya L. [Samantha L.], 124 AD3d 1001,1002-1003 [2015], lv denied 25 NY3d 904 [2015]; Matter of Angelo AA. [TashinaDD.], 123 AD3d 1247, 1247-1249 [2014]).
Therefore, we now turn to the second of the two-part inquiry, namely, whether themother substantially planned for the child's future (see Matter of Lawrence KK. [Lawrence LL.], 72 AD3d1233, 1234 [2010], lv denied 14 NY3d 713 [2010]; Matter of Laelani B., 59 AD3d880, 881-882 [2009]), and we find that, notwithstanding DSS's diligent efforts, therecord supports Family Court's determination of permanent neglect. To substantiallyplan, a parent [*4]must, at a minimum, take meaningfulsteps to correct the conditions that led to the child's initial removal from the home(see Matter of Nathaniel T., 67 NY2d 838, 840 [1986]; Matter of Alaina E., 59 AD3d882, 885 [2009], lv denied 12 NY3d 710 [2009]). During the relevantfact-finding hearing, the mother refused to take responsibility for the injuries caused tothe child that she had violently shaken, the act which arguably led to the removal of theolder children in the first instance (see Matter of Samuel DD. [Margaret DD.], 123 AD3d1159, 1162 [2014], lv denied 24 NY3d 918 [2015]; Matter of Asianna NN. [KansinyaOO.], 119 AD3d 1243, 1247-1248 [2014], lv denied 24 NY3d 907[2014]). Further, while it is beyond dispute that the mother participated in a number ofthe services made available to her, the record before us demonstrates that she failed tobenefit from them and, as such, failed to successfully plan for the future of the child(see Matter of Aniya L. [Samantha L.], 124 AD3d at 1004). Moreover, the recordfurther reveals the mother's continued involvement with men—the father, as wellas others—who are not safe for her and her children to be around (see Matterof Angelo AA. [Tashina DD.], 123 AD3d at 1249). Accordingly, DSS met its burdenof proving by clear and convincing evidence that the mother failed to substantially planfor the child's future and, thus, permanently neglected him.
As to disposition, we are unpersuaded that Family Court should have granted asuspended judgment in lieu of terminating respondent's parental rights." 'Following an adjudication of permanent neglect, the sole concern at adispositional hearing is the best interests of the child and there is no presumption that anyparticular disposition, including the return of a child to a parent, promotes suchinterests' " (Matter ofJohanna M. [John L.], 103 AD3d 949, 951 [2013], lv denied 21 NY3d855 [2013], quoting Matter ofAngelica VV., 53 AD3d 732, 733 [2008]; accord Matter of Asianna NN.[Kansinya OO.], 119 AD3d at 1248; see Family Ct Act § 631).Here, the child has been in foster care with the same foster parent since he was only twomonths old. As could be expected, the child has developed a strong and loving bond withhis foster family. Additionally, unlike the mother's home, the record demonstrates thatthe home provided by the child's foster parent is a safe environment free of domesticviolence. Thus, based upon the record as a whole, Family Court's decision to terminatethe mother's parental rights instead of ordering a suspended judgment was not an abuseof discretion (see Matter ofMadalynn I. [Katelynn J.], 111 AD3d 1205, 1207 [2013]; Matter of Alysheionna HH. [TaraII.], 101 AD3d 1413, 1415 [2012], lv denied 20 NY3d 861 [2013]; Matter of Hannah T. [JoshuaU.], 95 AD3d 1609, 1611 [2012], lv denied 19 NY3d 813 [2012]).
The remaining issues have been considered and have been found to be withoutmerit.
McCarthy, J.P., Egan Jr. and Rose, JJ., concur. Ordered that the appeals from theorders entered May 31, 2013 and March 17, 2014 are dismissed, without costs. Orderedthat the remaining orders are affirmed, without costs.
Footnote 1:The mother properlyappeals Family Court's June 24, 2013 fact-finding order regarding the court's finding ofderivative neglect (see Matter ofAlyssa L. [Deborah K.], 93 AD3d 1083, 1085 [2012]). However, she cannotappeal from the court's order of disposition as that order was entered upon consent (see Matter of Na'Sir RR. [DevineRR.], 118 AD3d 1180, 1180-1181 [2014]). Inasmuch as the mother has notmoved to vacate the disposition or withdraw her consent to the same and because noappeal lies from an order issued on consent, her appeal from the May 31, 2013dispositional order must be dismissed (see id.). The mother's appeal from thepermanency hearing order entered March 17, 2014 must also be dismissed (see Matter of Loraida R. [LoriS.], 97 AD3d 925, 926 n 2 [2012]; Matter of Kim OO. v Broome County Dept. of Social Servs., 44AD3d 1164, 1165 [2007]).
Footnote 2:The mother alsoattempts to appeal from four decisions of Family Court that relate to the findings ofneglect and permanent neglect; two dated May 14, 2013, one dated February 10, 2014and one dated February 20, 2014. However, no appeal may be taken from decisions(see Family Ct Act § 1112; CPLR 5702).
Footnote 3:The father, who was alsothe subject of a neglect proceeding, voluntarily surrendered his parental rights to thechild and has not participated in the instant appeal.