| Matter of Audrey I. |
| 2008 NY Slip Op 09872 [57 AD3d 1172] |
| December 18, 2008 |
| Appellate Division, Third Department |
| In the Matter of Audrey I. and Others, Children Alleged to bePermanently Neglected. Broome County Department of Social Services, Respondent; William G. et al.,Appellants. |
—[*1] Sandra M. Colatosti, Albany, for Amy G., appellant. Kuredin V. Eytina, Broome County Department of Social Services, Binghamton, for respondent. Teresa C. Mulliken, Law Guardian, Harpersfield.
Malone Jr., J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered October 30, 2007, which granted petitioner's application, in a proceeding pursuant to SocialServices Law § 384-b, to adjudicate the subject children to be permanently neglected, andterminated respondents' parental rights.
Respondent Amy G. is the mother of Audrey I. (born in 1996), Robert I. (born in 2000) [*2]and Katerine G. (born in 2002).[FN1]Respondent William G. is Katerine's father and stepfather to Audrey and Robert. In March 2004,based upon a report of suspicious bruising on Audrey for which respondents had no adequateexplanation, petitioner removed the children from respondents' custody and placed them in foster care.In September 2004, with respondents' consent, Family Court adjudicated the children to be neglectedand continued their placements in foster care. Petitioner thereafter commenced the instant proceedingpursuant to Social Services Law § 384-b, alleging that respondents had permanently neglectedthe children. Following a fact-finding hearing, Family Court adjudicated the children to be permanentlyneglected and ultimately terminated respondents' parental rights.[FN2]Respondents now separately appeal.
In a permanent neglect proceeding, the petitioning agency must establish by clear and convincingevidence that it made "diligent efforts to encourage and strengthen the parental relationship" and that, asis relevant here, despite those efforts, the parent has failed to plan for the child's future for a period ofone year after the child was removed from his or her care, although physically and financially able to doso (Social Services Law § 384-b [7]; see Matter of Sheila G., 61 NY2d 368, 373[1984]). More specifically, planning for the child's future requires the parent "to take such steps as maybe necessary to provide an adequate, stable home and parental care for the child" (Social Services Law§ 384-b [7] [c]), including the " 'utilization of medical, psychiatric, psychological and other socialand rehabilitative services and material resources made available to such parent' " (Matter of George M., 48 AD3d 926,927 [2008], quoting Matter of James X.,37 AD3d 1003, 1006 [2007]).
Here, contrary to respondents' contentions, petitioner adequately established that it assisted andencouraged a meaningful relationship between respondents and the children by, among other things,working with respondents to coordinate appropriate services for the family, arranging suitable visitationfor each respondent[FN3]and keeping respondents informed of each child's progress (see Social Services Law §384-b [7] [f]; Matter of Star Leslie W., 63 NY2d 136, 142 [1984]). In addition, petitionerestablished by clear and convincing evidence that respondents permanently neglected the children.Specifically, William G. failed to acknowledge or take responsibility for the problems that led to thechildren's removal from his custody, failed to satisfactorily complete the recommended counselingservices to overcome his significant anger management issues, and continued to harbor significantanimosity toward Amy G., despite their separation (see Social Services Law § 384-b[7] [c]). Moreover, at the supervised visits, William G. was often dismissive of the children or wasunnecessarily stern. He also admitted that he was not capable of providing Katerine with a properhome any time in the foreseeable future and requested that permanent custody of her be awarded to hisparents. The foregoing was [*3]sufficient to establish that William G.permanently neglected Katerine by failing to adequately plan for her future and appropriatelydetermined that her best interests were served by terminating his parental rights (see Matter ofGeorge M., 48 AD3d at 928; Matter of Lisa Z., 278 AD2d 674, 677 [2000]).
With respect to Amy G., although she participated in parenting classes and other services asprovided by petitioner, testimony at the fact-finding hearing established that, during the relevant timeperiod, she did not meaningfully benefit from those services or otherwise express insight into thecircumstances that caused the children's removal from her care. Significantly, Amy G. repeatedlyoffered inconsistent explanations for Audrey's bruises, at first denying any knowledge of them but thenadmitting that, although she suspected that William G. was abusing Audrey, she chose to ignore theproblem. Overall, Amy G. was resistant to address the problems that led to the children's removal fromthe home and minimized her role in the children's neglect. This was sufficient to support thedetermination that Amy G. also permanently neglected the children by failing to plan for their future (see Matter of Melissa DD., 45 AD3d1219, 1221 [2007], lv denied 10 NY3d 701 [2008]; Matter of Elijah NN., 20 AD3d 728, 729-730 [2005]).
However, testimony at the dispositional hearing established that, beginning approximately sixmonths prior to the filing of the instant petition, Amy G. began to make some progress in her therapeuticcounseling sessions and separated herself from William G.'s unhealthy influence. Amy G.'s testimonyrevealed that she was remorseful for her behavior, was seeking employment and was otherwisepreparing for the children's return to her. She acknowledged her children's mental health needs andexpressed a willingness to cooperate with petitioner to obtain for herself and the children counselingservices that were necessary to regain custody of them. There is no dispute that Amy G. has activelyparticipated in her visitation with the children and, by all accounts, has enjoyed appropriate andmeaningful interactions with them. The children, for their part, although adapting to their current fostercare situations, expressed interest in being returned to their mother's care.
Based on testimony presented at the dispositional hearing, a suspended judgment, rather thantermination of Amy G.'s parental rights, would have served the children's best interests (see Matterof Lisa Z., 278 AD2d at 680) as she has "demonstrate[d] the ability to be a fit parent" and has asignificant desire to regain custody of the children (Matter of Angela LL., 287 AD2d 823, 824[2001]; see Family Ct Act § 631 [b]; § 633; compare Matter of Angelica VV., 53 AD3d 732 [2008]). Moreover,although the children had been in foster care for nearly four years, there was no testimony presented atthe hearing that any of the children's foster parents were willing to adopt them. Thus, freeing them foradoption did not provide any reasonable assurance that they would be provided with a stable andpermanent home in the near future (compareMatter of Maelee N., 48 AD3d 929 [2008], lv denied 10 NY3d 709 [2008]; Matter of Jayde M., 36 AD3d 1168[2007], lv denied 8 NY3d 809 [2007]; Matter of Raena O., 31 AD3d 946 [2006]). Accordingly, as we do notfind that the children's best interests necessitates the termination of Amy G.'s parental rights, we reversethat determination and remit to Family Court for further dispositional proceedings, namely, the entry ofa suspended judgment whose conditions and duration should be determined by that court.
Mercure, J.P., Spain, Carpinello and Stein, JJ., concur. Ordered that the order is modified, on thelaw and facts, without costs, by reversing so much thereof as terminated the parental rights ofrespondent Amy G.; matter remitted to the Family Court of Broome County for further proceedings notinconsistent with this Court's decision; and, as so modified, affirmed.
Footnote 1: Amy G. has one other child, born in2007, who remains in her custody.
Footnote 2: William G.'s parental rights wereterminated only as to Katerine inasmuch as he had no parental rights with respect to the other twochildren.
Footnote 3: It is noted, however, that petitionerappropriately terminated William G.'s visitation with his stepchildren, Audrey and Robert, after thechildren's psychiatrist determined that his visits were harmful to them.