| Matter of George M. |
| 2008 NY Slip Op 01469 [48 AD3d 926] |
| February 21, 2008 |
| Appellate Division, Third Department |
| In the Matter of George M., a Child Alleged to be PermanentlyNeglected. Warren County Department of Social Services, Respondent; Charlotte M., Appellant.(And Another Related Proceeding.) |
—[*1] Karen Judd, Warren County Department of Social Services, Lake George, for respondent. Rose T. Place, Law Guardian, Glens Falls.
Malone Jr., J. Appeals from two orders of the Family Court of Warren County (Breen, J.),entered February 1, 2007 and March 8, 2007, which, among other things, granted petitioner'sapplication, in a proceeding pursuant to Social Services Law § 384-b, to adjudicate GeorgeM. a permanently neglected child, and terminated respondent's parental rights.
Respondent is the biological mother of a son (born in March 2005). In June 2005, followingthe filing of a neglect petition and the holding of a preliminary hearing, respondent consented tothe temporary removal of the child from her care and his placement in petitioner's custody.Petitioner had had prior contact with respondent in June 2004 when her four other children wereplaced in foster care after it was discovered that the family was homeless and that respondent wasunable to provide for the children's basic needs. At that time, petitioner developed a riskassessment and service plan to enable respondent to regain custody of these children. InDecember 2005, Family Court issued an order of protection and an order of fact-[*2]finding and disposition with placement concerning the child thatidentified conditions similar to those contained in the prior service plan that respondent had tosatisfy in order to regain custody of this child.
Respondent, however, failed to comply with a number of the conditions set forth in theDecember 2005 orders and, in May 2006, a petition was filed charging her with violating thesame.[FN1]In August 2006, another petition was filed charging respondent with permanently neglecting thechild and seeking to terminate her parental rights. Following an extended fact-finding hearing,Family Court issued an order finding that respondent had permanently neglected the child andhad violated the prior orders. Family Court then held a dispositional hearing and issued asubsequent order terminating respondent's parental rights based upon its finding of permanentneglect.[FN2]Respondent appeals from both orders.
Initially, "[t]o obtain a termination of parental rights based upon permanent neglect,petitioner is required to prove by clear and convincing evidence that the parent failed to maintaincontact with or plan for the future of his or her child for one year after the child came intopetitioner's custody notwithstanding petitioner's diligent efforts to strengthen the parent-childrelationship" (Matter of MelissaDD., 45 AD3d 1219, 1220 [2007], lv denied 10 NY3d 701 [2008]; seeSocial Services Law § 384-b [7] [a]). The threshold inquiry is whether petitioner hasundertaken diligent efforts to strengthen the parental relationship by, among other things,providing "counseling, making suitable arrangements for visitation, providing assistance to theparents to resolve or ameliorate the problems preventing discharge of the child to their care andadvising the parent at appropriate intervals of the child's progress and development" (Matterof Star Leslie W., 63 NY2d 136, 142 [1984]; see Social Services Law § 384-b[7] [f]; see e.g. Matter of Aldin H.,39 AD3d 914, 915 [2007]; Matterof Raena O., 31 AD3d 946, 947-948 [2006]). "Once [petitioner] has demonstrated that ithas made the requisite diligent efforts, the parent must show that his or her problems have beenaddressed and that there is a meaningful plan for the child's future" (Matter of James X., 37 AD3d1003, 1006 [2007] [citations omitted]). More specifically, planning for the future of thechild means "tak[ing] the necessary steps to provide an adequate, stable home and parental carefor the child, including the utilization of medical, psychiatric, psychological and other social andrehabilitative services and material resources made available to such parent" (id.;see Social Services Law § 384-b [7] [c]; Matter of Nathaniel T., 67 NY2d838, 840 [1986]).
The record discloses that petitioner worked with respondent for nearly two years and made avariety of services available to her to enable her to meet the conditions of the December 2005orders and to regain custody of her son. These included having her enrolled at no cost in theIntensive Aftercare and Prevention Program through a local agency that provided her withindividual and family counseling as well as instruction in areas such as parenting, household[*3]finance and personal hygiene. In addition, petitioner alsoprovided private mental health counseling referrals, foster care services, supervised visitation,transportation assistance and housing referrals. Notwithstanding the services provided, evidencewas presented at the fact-finding hearing that respondent repeatedly missed counselingappointments and failed to complete the counseling recommended by a number of differentprofessionals resulting in little progress with her mental health, anger management and maritalproblems. Similarly, respondent was often late, left early or entirely missed her supervisedvisitation appointments with her son. During the visits that she did attend, she sometimesexhibited improper parenting skills as, for example, when she attempted to feed inappropriatefood to her infant son. In addition, respondent changed residences frequently, moving 12 times inthe 11 months preceding the fact-finding hearing, and she lived in motel rooms, campers, trailersand apartments that were not suitable for a child. While she held a number of part-time jobs, heremployment was sporadic and she continued to exercise poor judgment in budgeting her money.Furthermore, she continued to stay in an abusive relationship with her husband without regard tothe impact this would have on her reunification with her son. Although respondent participated inanger management counseling and completed a parenting class, she did not avail herself of manyof the services necessary to regain custody of her son. Significantly, she did not exhibit anawareness of the issues leading to her son's removal or a commitment to making the changesneeded to insure a stable living situation justifying his return. In view of this, we conclude thatclear and convincing evidence supports Family Court's finding of permanent neglect (see e.g. Matter of Deajah Shabri T., 44AD3d 1060 [2007]; Matter ofJonathan Jose T., 44 AD3d 508 [2007]).
In addition, contrary to respondent's claim, the proof amply supports Family Court's findingthat respondent violated the December 2005 orders "willfully and without just cause" (Family CtAct § 1072). Respondent's limited financial resources are not an excuse for her failure tocomply with the conditions set forth in the December 2005 orders, many of which had nomonetary implications. Furthermore, under the circumstances presented, we are not persuadedthat Family Court should have imposed a suspended judgment instead of terminatingrespondent's parental rights. The controlling consideration following a dispositional hearing isthe best interests of the child and "[t]here is no presumption that those interests will be servedbest by return to the parent" (Matter of Star Leslie W., 63 NY2d at 147-148; seeFamily Ct Act §§ 631, 633). Given the considerable time and resources thatpetitioner devoted to respondent's case and respondent's failure to demonstrate significantprogress in resolving the issues that caused her son's removal in the first instance, we defer toFamily Court's choice of dispositional alternatives (see Matter of James X., 37 AD3d at1006; see also Matter of Melissa DD., 45 AD3d at 1221).
Mercure, J.P., Peters, Spain and Lahtinen, JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote 1: Prior to the filing of thispetition, respondent surrendered her parental rights to her other four children.
Footnote 2: Respondent's husband, thechild's biological father, voluntarily surrendered his parental rights at the fact-finding hearing.