| Matter of Zoey O. (Veronica O.) |
| 2017 NY Slip Op 01413 [147 AD3d 1227] |
| February 23, 2017 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Zoey O. and Others, Alleged to be PermanentlyNeglected Children. Broome County Department of Social Services, Respondent; Veronica O.,Appellant. |
Joan E. Mencel, Endwell, for appellant.
Thomas P. Coulson, Broome County Department of Social Services, Binghamton, forrespondent.
Michael J. Sullivan, Vestal, attorney for the children.
Devine, J. Appeals from two orders of the Family Court of Broome County (Pines, J.),entered March 2, 2015 and August 7, 2015, which granted petitioner's application, in aproceeding pursuant to Social Services Law § 384-b, to adjudicate the subjectchildren to be permanently neglected, and terminated respondent's parental rights.
Respondent is the mother of Haveen P. (born in 2006), Amira O. (born in 2007) and Zoey O.(born in 2009), all of whom were removed from her care in January 2011 after one of her otherchildren died under suspicious circumstances. Family Court adjudicated the three children tohave been neglected in August 2011, and they were in the supervised custody of their maternalgrandmother until July 2012, when custody was surrendered to petitioner. Respondent wasincarcerated on pending charges related to the child's death from September 2011 onward and, inFebruary 2012, she gave birth to Omari O. Omari was found to have been derivatively neglectedby respondent and placed in the care of petitioner and, for a period of time, the four childrenlived together in a foster placement.
[*2] Respondentwas convicted of crimes that included murder in the second degree and manslaughter in the firstdegree and, in February 2013, she was sentenced to an aggregate prison term of 25 years to life tobe followed by postrelease supervision. Petitioner filed the present petition in September 2013,alleging that respondent had permanently neglected the four children by, among other things,failing to plan for their future. Family Court conducted a fact-finding hearing and determined thatrespondent had, indeed, permanently neglected the children. Following a dispositional hearing,Family Court terminated her parental rights with the expectation that the three eldest childrenwould be placed for adoption and that Omari would remain in the custody of a fit and willingrelative. Respondent now appeals from both the fact-finding and dispositional orders.[FN*]
Petitioner met its threshold burden of coming forward with clear and convincingevidence—in particular, testimony of the caseworker who handled respondent's case thatFamily Court implicitly found credible—that it made "diligent efforts to encourage andstrengthen the parental relationship" (Social Services Law § 384-b [7] [a]; accord Matter of Hailey ZZ. [RickyZZ.], 19 NY3d 422, 429 [2012]). Haveen, Amira and Zoey were placed in the custody ofthe maternal grandmother following their removal and, despite the fact that respondent was onlyin the area intermittently and refused to tell the caseworker where she was living, a plan wasformulated that aimed at returning those children to respondent. Respondent was expected toengage in services that included parenting classes, domestic violence training and counseling,while the caseworker monitored the progress of the children with their grandmother and arrangedfor child counseling as needed. Respondent was also free to engage in supervised visitation withthe three children, although visits were sometimes prevented by respodent's failure to seek thecaseworker's approval for them in a timely manner.
The efforts to strengthen the parental relationship continued, albeit in a more restrainedfashion, after respondent was incarcerated in September 2011. The grandmother, who hadcustody of the three eldest children until she surrendered such to petitioner in June 2012, wasresponsible for coordinating visitation between respondent and the three eldest children. Thecaseworker's understanding was that respondent did not want this visitation to occur and, whenrespondent did request visitation after the children entered into petitioner's custody, difficulties inadjusting to their new foster placement made visitation inadvisable. The caseworker did arrangefor visits between respondent and Omari, who was placed in foster care after his birth, andencouraged respondent to engage in the services available at prison. In light of the foregoing,while all visitation ceased after respondent was convicted of murder in the second degree(see Family Ct Act § 1085 [1]), Family Court did not err in finding thatpetitioner made "diligent efforts to encourage and strengthen [respondent's] relationship with thesubject child[ren]" (Matter of Landon U.[Amanda U.], 132 AD3d 1081, 1084 [2015]; see Matter of Jazmyne II. [Frank MM.], 144 AD3d 1459, 1460[2016]; Matter of Marquise JJ. [JamieKK.], 91 AD3d 1137, 1138-1139 [2012], lv denied 19 NY3d 801[2012]).
[*3] Petitioner also demonstrated thatrespondent had not "develop[ed] a realistic plan for the children's future" as required (Matter of Johanna M. [John L.], 103AD3d 949, 950 [2013], lv denied 21 NY3d 855 [2013]; see Social ServicesLaw § 384-b [7]; Matter of Jazmyne II. [Frank MM.], 144 AD3d at 1460).Respondent was less than communicative with the caseworker as to the services she was engagedin and, indeed, the caseworker remained unsure of what services respondent completed at thetime of the fact-finding hearing. Respondent was facing a substantial term of imprisonment, inany event, and she failed to provide contact information for individuals she believed could carefor the children or otherwise encourage those individuals to take action toward that end. Therecord, as a result, supports the finding of permanent neglect (see Matter of Jayden XX. [John XX.], 127 AD3d 1286, 1286-1287[2015]; Matter of Hannah T. [JoshuaU.], 95 AD3d 1609, 1610-1611 [2012], lv denied 19 NY3d 813 [2012]).
Remittal is, however, required for a new dispositional hearing. Upon appeal fromrespondent's criminal conviction, this Court modified the judgment of conviction by reversingher murder and manslaughter convictions and dismissing the underlying counts of the indictment.Respondent is accordingly not facing the lengthy term of imprisonment anticipated at the timethe dispositional order was issued and, as such, it is unclear whether the best interests of thechildren continue to demand the termination of her parental rights. Thus, we agree with petitionerand respondent that a new dispositional hearing is required (see Matter of Brandon Michael R. [Wandalee R.], 116 AD3d 620,620-621 [2014]; Matter of Malik S.[Jana M.], 101 AD3d 1776, 1777-1778 [2012]).
Respondent's remaining contention regarding the propriety of terminating her parental rightsrelating to Omari has been rendered academic given the need for a new dispositionalhearing.
McCarthy, J.P., Garry, Lynch and Mulvey, JJ., concur. Ordered that the appeal from theorder entered March 2, 2015 is dismissed, without costs.
Ordered that the order entered August 7, 2015 is modified, on the law, without costs, byreversing so much thereof as terminated respondent's parental rights, freed Haveen P., Amira O.and Zoey O. for adoption and placed Omari O. with a fit and willing relative; matter remitted tothe Family Court of Broome County for further proceedings not inconsistent with this Court'sdecision and, pending said proceedings, the terms of said order shall remain in effect on atemporary basis; and, as so modified, affirmed.
Footnote *:Inasmuch as the fact-findingorder in this permanent neglect proceeding is nondispositional, the appeal from it must bedismissed (see Family Ct Act § 1112 [a]; Matter of Jah'Meir G. [Eshale G.], 112AD3d 1014, 1015 [2013], lv denied 22 NY3d 863 [2014]). We nevertheless address"issues from the fact-finding phase of the proceeding . . . [in] our review of thedispositional order" (Matter of Jah'Meir G. [Eshale G.], 112 AD3d at 1015; seeCPLR 5501 [a] [1]; Matter of Adele T.[Kassandra T.], 143 AD3d 1202, 1203 [2016]).