| Matter of Haylee RR. |
| 2008 NY Slip Op 00314 [47 AD3d 1093] |
| January 17, 2008 |
| Appellate Division, Third Department |
| In the Matter of Haylee RR., a Child Alleged to be Neglected.Broome County Department of Social Services, Respondent; Denise SS., Appellant. BrandonRR., Appellant. |
—[*1] Abbie Goldbas, Utica, for Brandon RR., appellant. Kuredin V. Eytina, Broome County Department of Social Services, Binghamton, forrespondent. Jeffrey E. McMorris, Law Guardian, Glens Falls.
Kane, J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered February 5, 2007, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act articles 10 and 10-A, to extend the placement of the subject child and approvepetitioner's permanency plan.
Respondent (hereinafter the mother) and Brandon RR. (hereinafter the father) are the parentsof Haylee RR. (born in November 2004), who was removed from their custody immediately afterher birth. She lived with the father's sister until February 2005, at which point both parentsvoluntarily transferred custody to petitioner, resulting in Haylee's placement with foster parents.At approximately the same time, petitioner commenced a neglect proceeding alleging derivativeneglect against both parents based upon a 2004 Pennsylvania court order [*2]finding that they perpetrated abuse against their older son whereaggravated circumstances existed. The Pennsylvania finding was based upon their son, who wasfour months old at the time, having a broken tibia and seven broken ribs in various stages ofhealing.[FN1]Petitioner withdrew the petition against the father because he was incarcerated in Texas at thetime of the hearing; he was released at the end of 2005. In August 2005, Family Court found,upon the mother's admissions, that she neglected Haylee. Thereafter, Haylee remained inpetitioner's custody due to the mother's admitted neglect and the father's voluntary placement. InJuly 2006, the father's aunt filed a custody petition. She was approved as a foster parent andexpressed a desire to adopt Haylee if parental rights were terminated. The foster parents whocared for Haylee also expressed interest in adopting her.
After a permanency hearing concluded in January 2007, Family Court approved petitioner'spermanency plan, which modified the permanency goal of return to parent and substituted a newgoal of freeing the child for adoption. Petitioner had already filed a petition to terminate parentalrights, in furtherance of this new goal.[FN2]The court continued Haylee's placement with the same foster parents, rather than transferring herto the father's aunt. The mother and father appeal.
Family Court did not err in accepting petitioner's modified permanency plan. Termination ofparental rights and freeing a child for adoption may be appropriate where the parents do notdevelop an awareness of the child's basic needs or the reason the child is in foster care, as long asthe parents have been provided with adequate time and services to assist them in developing suchan awareness (see Matter of JenniferR., 29 AD3d 1003, 1004-1005 [2006]). Petitioner offered services to the parents as partof its reasonable efforts to eliminate the need for placement and to enable Haylee to safely returnto them (see Family Ct Act § 1089 [d] [2] [iii] [A]). Yet, to ensure Haylee's safety,petitioner and Family Court refused to consider returning Haylee to either parent until he or shecredibly explained the cause of their son's injuries. The mother vaguely testified that she acceptedresponsibility for her son receiving injuries, but could not explain how the child was injured. Theparents complied with petitioner's other requirements, but no explanation was ever offered byeither parent despite the Pennsylvania order finding that each was a perpetrator of abuse againsttheir son. Without explaining the circumstances which led to the multiple injuries suffered bytheir son, the parents cannot effectively address the underlying parenting problems, nor canpetitioner work with the parents to address their parenting deficiencies. Under the circumstances,given the parents' failure to explain the cause of the injuries to their son despite the passage ofseveral years since entry of the Pennsylvania court order, petitioner met its burden of showingthat a change in the permanency goal to adoption was in the child's best interests (see Matter of Darlene L., 38 AD3d552, 554[*3][2007]; Matter of Jennifer R., 29 AD3dat 1004 [2006]; Matter of Amanda C., 309 AD2d 744, 744 [2003]).
Family Court properly found that the child's best interests were served by continuing herplacement in foster care rather than placing her with the father's aunt, and arranging for visitationwith the aunt. The court was not required to provide a separate hearing on the aunt's applicationto be a foster parent because she did not apply within one year of Haylee's placement in fostercare (see Family Ct Act § 1028-a [a] [v]). The foster parents would have apreference for adoption, given that they had continuously cared for Haylee for more than a yearand expressed an interest in adopting her (see Social Services Law § 383 [3];Matter of Michael W., 120 AD2d 87, 90 [1986]). Haylee had lived with the foster parentssince she was three months old, and had only visited with the aunt on, at most, four occasions.Thus, it was reasonable for the court to determine that Haylee's best interests would be served bycontinuing her placement in the current foster home and arranging for visits with the aunt. Thisopened the door for future placement with the aunt either as a foster parent, as a suitable relativeor as a potential preadoptive home (see Family Ct Act § 1089 [d] [2]).
The father's due process rights were not violated. Family Court reasonably permittedpetitioner to withdraw its neglect petition against the father without prejudice based upon thepractical difficulties of proceeding when he was incarcerated out of state. He fully participated,with counsel, in this proceeding concerning the extension of placement and approval of thepermanency plan.
Cardona, P.J., Spain, Carpinello and Malone, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: The mother and the fathersubsequently surrendered their parental rights to their son.
Footnote 2: Petitioner informs us that,subsequent to the entry of the order currently on appeal, Family Court dismissed the petition toterminate parental rights. The dismissal does not render this appeal moot, however, because thecurrent permanency goal remains freeing the child for adoption.