| Matter of Isaiah F. |
| 2008 NY Slip Op 07828 [55 AD3d 1004] |
| October 16, 2008 |
| Appellate Division, Third Department |
| In the Matter of Isaiah F., a Child Alleged to be Permanently Neglected.Cortland County Department of Social Services, Respondent; Virginia F., Appellant. (Proceeding No.1.) In the Matter of Cellia F., a Child Alleged to be Permanently Neglected. Cortland CountyDepartment of Social Services, Respondent; Virginia F., Appellant. (Proceeding No.2.) |
—[*1] Ingrid Olsen-Tjensvold, Cortland County Department of Social Services, Cortland, forrespondent. Randolph V. Kruman, Law Guardian, Cortland.
[*2]Peters, J. Appeal from an order of the Family Court ofCortland County (Campbell, J.), entered December 3, 2007, which granted petitioner's applications, intwo proceedings pursuant to Social Services Law § 384-b, to adjudicate respondent's childrento be permanently neglected, and terminated respondent's parental rights.
In May 2007, these permanent neglect proceedings were commenced against respondentregarding two of her children, Isaiah F. (born in 2002) and Cellia F. (born in 2004).[FN1]After a fact-finding hearing, Family Court adjudicated the children to be permanently neglected and,following a dispositional hearing, respondent's parental rights were terminated. Respondent appeals.
We reject respondent's assertion that petitioner failed to make diligent efforts to reunite her with herchildren as required by Social Services Law § 384-b (7) (a) (see Matter of George M., 48 AD3d926, 927 [2008]; Matter of RaenaO., 31 AD3d 946, 947 [2006]). Evidence presented at the fact-finding hearing proved thatpetitioner made "affirmative, repeated and meaningful efforts to restore the parent-child relationship"(Matter of Alycia P., 24 AD3d1119, 1120 [2005]; accord Matter of Raena O., 31 AD3d at 947). Petitioner provided anumber of services to respondent, including parent educators to teach her parenting and housekeepingskills, caseworkers to support the family, subsidized housing, supervised visitation, referrals for mentalhealth counseling, substance abuse evaluations and counseling, employment counseling and training,therapy referrals for the children, transportation assistance and transportation of the children tovisitation. Thus, petitioner met its initial burden of proving diligent efforts to support the familyrelationship, despite respondent's failure to avail herself of all the services offered (see Matter of Aldin H., 39 AD3d 914,915-916 [2007]; Matter of Thomas JJ.,20 AD3d 708, 710 [2005]).
Respondent further contends that petitioner failed to establish by clear and convincing evidence thatshe permanently neglected her children. As petitioner has demonstrated that it made diligent efforts tosupport the family relationship, it became respondent's obligation to show that her problems had beenaddressed and that she had a meaningful plan for the children's future (see Social Services Law§ 384-b [7] [a]; Matter of George M., 48 AD3d at 927; Matter of James X., 37 AD3d 1003,1006 [2007]). The evidence revealed that respondent failed to address the problems which led to thechildren's initial removal. Isaiah and Cellia were first adjudicated neglected and removed fromrespondent's home in July 2005. They were returned thereafter but, due to respondent's violation ofcourt orders, they were again removed from October 2005 to December 2005 and also in May 2006,after which they remained in foster care for the duration of these proceedings. From July 2005 to May2007, respondent failed to consistently keep her home in a hazard-free state, including leaving brokenglass and drain cleaner accessible to the children. Moreover, despite Isaiah's severe dental problemsdue to decayed teeth, which were assertively being addressed by his foster parents, respondent gavehim soda during visitation and did not consider this practice problematic. This conduct was indicative ofher inconsistency in addressing the children's medical and dental needs. Respondent herself had beendiagnosed with [*3]major depressive disorder and alcohol dependency,yet repeatedly failed to complete mental health and substance abuse counseling in violation of multipleFamily Court orders.
To her credit, for a brief period in early 2007, she was largely in compliance with court orders andattended mental health and substance abuse counseling. Thus, she was granted semi-unsupervisedvisitation in her home. However, during her first unsupervised visit, respondent gave one of her ownprescription narcotic pain killers to her older daughter, who is not a subject of this proceeding, becausethe child complained of a migraine headache. Respondent informed caseworkers that she did notunderstand why she should not have given her medication to the child despite being aware of the factthat her daughter had been prescribed medication by a physician. This incident resulted in an indicatedreport to the State Central Registry. Shortly thereafter, during another unsupervised visit, respondentleft Cellia alone in a bathtub upstairs for several minutes while she answered the door. Anotherindicated report resulted. Thus, as the evidence revealed that respondent failed to correct the conditionswhich led to the children's removal and failed to address her substance abuse and mental healthproblems, Family Court properly found that she had failed to adequately plan for the subject children'sfuture (see Matter of Aldin H., 39 AD3d at 915-916; Matter of Jayde M., 36 AD3d 1168, 1169-1170 [2007], lvdenied 8 NY3d 809 [2007]).[FN2]
Finally, respondent claims that Family Court should not have terminated her parental rights, butrather should have entered a suspended judgment. We disagree. To be sure, Family Court maysuspend judgment in a termination proceeding where it is in the children's best interests to give theparent a second chance to "demonstrate the ability to be a fit parent" (Matter of Angela LL.,287 AD2d 823, 824 [2001]; see Family Ct Act § 631 [b]; § 633; Matter of Jonathan J., 47 AD3d 992,993 [2008], lv denied 10 NY3d 706 [2008]). The evidence presented at this dispositionalhearing, however, did not support such an outcome. Rather, it showed that respondent did not have astable home or employment and that, because she had been discharged for nonattendance from bothsubstance abuse and mental health counseling, she was no longer eligible to receive public assistance forhousing and other services. According appropriate deference to the court's choice of dispositionalalternatives (see Matter of James X., 37 AD3d at 1007), we find a sound and substantial basisin the record for Family Court's determination that a suspended judgment was not in these children'sbest interests. Given respondent's continuous failure to acknowledge and address the problems thatdirectly affected her fitness as a parent and her inability to provide a stable home for her children,Family Court properly terminated her parental rights (see Matter of Raine QQ., 51 AD3d 1106, 1106-1107 [2008], lvdenied 10 NY3d 717 [2008]; Matter of Aldin H., 39 AD3d at 915-916; Matter ofJayde M., 36 AD3d at 1170).
Cardona, P.J., Rose, Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote 1: In a separate decision, this Courtaffirms an order terminating the father's parental rights based on abandonment (Matter of IsaiahF., 55 AD3d 1012 [2008] [decided herewith]).
Footnote 2: While Family Court erred when itconsidered evidence concerning incidents that occurred after the filing of the petition in support of thefact-finding portion of this permanent neglect proceeding, we find it harmless because sufficientadmissible facts were evinced at the hearing to support the court's permanent neglect finding.