| Matter of Gerald BB. |
| 2008 NY Slip Op 04015 [51 AD3d 1081] |
| May 1, 2008 |
| Appellate Division, Third Department |
| In the Matter of Gerald BB. and Others, Children Alleged to bePermanently Neglected. Schenectady County Department of Social Services, Respondent; SheilaCC., Appellant. (Proceeding No. 1.) (And Another Related Proceeding.) In the Matter of YolandaZZ., Appellant, v Sheila CC. et al., Respondents, and Schenectady County Departmentof Social Services, Respondent. (Proceeding No. 2.) |
—[*1] Sandra M. Colatosti, Albany, for Yolanda ZZ., appellant. Ursula E. Hall, Schenectady County Department of Social Services, Schenectady, forSchenectady County Department of Social Services, respondent. [*2]Diane M. Hermann, Law Guardian,Schenectady.
Kavanagh, J. Appeals (1) from an order of the Family Court of Schenectady County (Cortese,J.), entered March 1, 2007, which, among other things, granted petitioner's application, inproceeding No. 1 pursuant to Social Services Law § 384-b, to adjudicate the subjectchildren to be permanently neglected, and terminated respondent's parental rights, and (2) froman order of said court (Taub, J.H.O.), entered May 7, 2007, which dismissed petitioner'sapplication, in proceeding No. 2 pursuant to Family Ct Act article 6, for custody of the subjectchildren.
Respondent Sheila CC. (hereinafter the mother) is the mother of seven children. On June 30,2004, the three youngest children, Gerald BB. (born in 1998), Shalonda BB. (born in 2000) andBishop BB. (born in 2003), were removed from her care and custody by the Schenectady CountyDepartment of Social Services (hereinafter DSS)[FN1]and placed in foster care pursuant to Family Ct Act § 1024. DSS filed a neglect petitionand Family Court held a hearing, at which the mother failed to appear. By order entered in June2005, Family Court (Siebert, Jr., J.) adjudicated the children to be neglected and ordered them toremain in the custody of DSS, with certain terms and conditions being placed upon the mother.
After the children were in DSS custody for more than a year, DSS filed a petition in August2005 pursuant to Social Services Law § 384-b seeking an adjudication that the childrenhad been permanently neglected.[FN2]After a fact-finding hearing was held, Family Court, on June 24, 2006, found that the mother had,among other things, permanently neglected the children. Before the dispositional hearing washeld, petitioner in proceeding No. 2, the children's maternal aunt (hereinafter the aunt), filed apetition for custody of the children. The hearing on this petition was held in abeyance pendingthe outcome of the dispositional hearing in connection with the permanent neglect proceeding.After the dispositional hearing had been conducted, Family Court (Cortese, J.), by order enteredMarch 1, 2007, issued an order which terminated the mother's parental rights, placed the childrenin the care and custody of DSS and freed them for adoption. Thereafter, by order entered May 7,2007, Family Court (Taub, J.H.O.) dismissed the aunt's petition for custody. The mother and theaunt now appeal.[*3]
The mother raises several issues on this appeal. Theyinclude her contention that DSS failed to exercise diligent efforts to strengthen the parentalrelationship between her and her three children, that the record does not support a finding byclear and convincing evidence that the mother permanently neglected her children or that it wasin the children's best interests to terminate her parental rights and free them for adoption and thatshe was deprived of effective representation due to her counsel's failure to file a notice of appealfrom the dispositional order issued after the Family Ct Act article 10 neglect proceeding in whichshe failed to appear.
To the extent that the mother's ineffective assistance of counsel claim relates to the priorneglect proceeding, it is not properly before this Court (see Matter of Bryan W., 299AD2d 929, 930 [2002], lv denied 99 NY2d 506 [2003]), and the mother's proper remedywas to seek to vacate the default judgment (see Family Ct Act § 1042; Matter of Elizabeth T., 3 AD3d751, 753 [2004]). In any event, as to the permanent neglect proceeding, counsel waseffective in that he thoroughly cross-examined witnesses, presented witnesses supportive of themother's position, made appropriate objections, elicited evidence of the mother's attempts toaddress her ongoing problem with substance abuse and forcefully urged Family Court to deny thepermanent neglect petition. Viewed in its totality, the representation afforded the mother in thisproceeding was both meaningful and effective (see Matter of Brenden O., 20 AD3d 722, 723 [2005]; Matter of Anjoulic J., 18 AD3d984, 987-988 [2005]).
The mother next argues that DSS failed to establish that it made diligent efforts to strengthenthe bond between the mother and the children, as required by Social Services Law § 384-b(7) (f), and the evidence did not support a finding of permanent neglect. In the context of apetition seeking termination of parental rights based upon a finding of permanent neglect, theagency must establish by clear and convincing evidence (see Social Services Law §384-b [3] [g]; Matter of MelissaDD., 45 AD3d 1219, 1220 [2007], lv denied 10 NY3d 701 [2008]) first, that itmade diligent efforts to strengthen the parent-child relationship and, second, that despite thosediligent efforts, the parent has failed to maintain contact with the child or participate in plans forthe child's future for one year after the agency has been charged with the child's care and custody(see Social Services Law § 384-b [7]; Matter of Gregory B., 74 NY2d 77,86 [1989]; Matter of George M., 48AD3d 926, 927 [2008]). The agency is required to use diligent efforts to assist, develop andencourage a meaningful relationship between the parent and child, including cooperating with theparents to develop a plan that is designed to provide the child and family with appropriateservices. It also must use diligent efforts to arrange for the parent, if possible, to visit the child,or, if the parent is incarcerated, determine if such visits are in the child's best interests. Finally,the agency must also seek to provide the parents with available services that are designed toresolve or ameliorate issues, the existence of which have prevented the child from beingdischarged from the care and custody of the agency, and keep the parents informed as to thechild's progress, development and health while in foster care.
Here, the mother complains that DSS failed to make a meaningful effort to address her needsas it relates to the children's welfare. She denies that there was any real communication betweenher and DSS regarding what progress her children had made or what needed to be done in thefuture to ensure their health and welfare. She also complains that the drug and alcohol treatmentoptions offered her were limited and of little use in dealing with her addiction. The record, to befrank, is at odds with most of the mother's contentions. DSS caseworkers testified not only thatwritten reports had been routinely sent to the mother charting her children's progress while theywere in foster care but, also, that efforts were repeatedly made by members of DSS to involve themother in discussions regarding plans for the children's future. DSS also documented her chronicfailure to attend or participate in these meetings despite agreeing to do so. [*4]Caseworkers also sought to involve her in counseling regimensdesigned to enhance her parenting skills and enroll her in drug and alcohol programs to addressher addictions. In fact, throughout this process, the mother not only consistently failed tocooperate with DSS, but has refused to sign appropriate releases or participate in screeningprocedures to confirm that she was, in fact, substance free as she claimed. Finally, DSS, in aneffort to establish and foster a meaningful relationship between the mother and her children,arranged for her, while incarcerated, to have visits with the children. Based upon the recordbefore us, there is clear and convincing evidence that DSS made a diligent effort to strengthenthe relationship that the mother had with her children and to facilitate their ultimate return to hercare and custody.
Nor do we agree that the finding of permanent neglect was unsupported by the evidence(see Social Services Law § 384-b [7] [a]). The children had been in DSS custodyand in foster care for more than two years as of the date of the fact-finding hearing. In theoriginal dispositional order issued by Family Court, the mother was directed, as part of the planfor the children's future, to complete drug treatment programming, participate in parentingclasses and develop a suitable home environment in which the children would live if returned toher custody. Instead, the mother, during this period, was incarcerated on two separate occasions,the first for 60 days and the second for a six-month period. She also continued to abuse alcoholand drugs, testing positive for cocaine in February 2005. She was often late and frequentlymisplanned visits with her children and simply did not recognize the impact that this neglect hadon them. When with them, she did not, in the opinion of the supervising caseworker, bond withany of the children or make any progress in establishing a wholesome relationship with them.Finally, she continued to reside with the father, who she has charged with and who has admittedto an ongoing history of substance abuse. That relationship cannot provide the type of livingenvironment that would be suitable for the health and welfare of her children if they werereturned to her. Accordingly, DSS has established by clear and convincing evidence that themother permanently neglected the children by failing to plan for their future and has not made ameaningful effort to be part of their lives for a period in excess of one year (see Matter of Antonio EE. v SchoharieCounty Dept. of Social Servs., 38 AD3d 944, 946-947 [2007], lv denied 8 NY3d813 [2007]).
We are also convinced that Family Court properly concluded that termination of the mother'sparental rights was in the best interests of the children (see Matter of Jayde M., 36 AD3d 1168, 1170 [2007], lvdenied 8 NY3d 809 [2007]). All three of the children have various psychological and/orbehavioral needs requiring special treatment, which the mother has not only failed to provide, butrefuses to recognize. The children have failed to bond with their mother during these visits, andthe extended length of time that they have already been in foster care is obviously making itexceedingly difficult, if not impossible, for these children to develop a wholesome relationshipwith perspective adoptive parents. For this reason, it is in their best interests that they be removedfrom foster care and into an adoptive setting as soon as circumstances allow. In short, thechildren's best interests can only be served, at this stage of their lives and as shown by the record,by the termination of the mother's parental rights.
Finally, we address the aunt's claim that Family Court erred by dismissing, without a hearing,her petition to take custody of the three children. While a hearing would have been appropriate,the fact is that the aunt testified at length on all relevant issues during the permanent neglecthearing and the court considered her testimony in its dispositional order. Her belatedinvolvement in these proceedings, especially in light of the fact that she did not know that thechildren had been in foster care for almost two years, is disturbing and creates real issues as towhether their best interests could possibly be served by granting her petition. The court was well[*5]aware that the aunt was available and willing to acceptresponsibility for the children, yet decided, on this record, that it was in their best interests thatthey be freed for adoption. Given that finding, Family Court did not err by first determiningwhether the mother had permanently neglected her children prior to passing on the aunt's custodypetition because her petition was "immaterial to the determination of [the mother's] parentalrights" (see Matter of Andrew Z., 41AD3d 912, 913 [2007]). Once the mother's parental rights were terminated and the childrenwere placed in the permanent custody of DSS, the aunt's custody petition was properly dismissed(see Matter of Herbert PP. v Chenango County Dept. of Social Servs., 299 AD2d 780,781 [2002]), and her only recourse was to pursue adoption, not custody, of the three children(see Matter of Patience B. v Administration for Children's Servs., 306 AD2d 473, 473[2003]; Matter of Herbert PP. v Chenango County Dept. of Social Servs., 299 AD2d at781).
Peters, J.P., Spain, Rose and Lahtinen, JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote 1: DSS is the petitioner inproceeding No. 1 as well as a respondent in proceeding No. 2.
Footnote 2: In November 2005, DSS alsobrought a violation proceeding claiming that the mother had violated the order of disposition.Additionally, a similar permanent neglect petition was filed against the father, respondent GeraldDD., who has not appealed Family Court's subsequent order which terminated his parental rights.