| Matter of Eric G. |
| 2009 NY Slip Op 01049 [59 AD3d 785] |
| February 11, 2009 |
| Appellate Division, Third Department |
| In the Matter of Eric G. and Another, Children Alleged to bePermanently Neglected. St. Lawrence County Department of Social Services, Respondent;Michael G., Appellant. |
—[*1] David D. Willer, St. Lawrence County Department of Social Services, Canton, forrespondent. Diane Exoo, Law Guardian, Canton.
Cardona, P.J. Appeal from an order of the Family Court of St. Lawrence County (Potter, J.),entered September 14, 2007, which granted petitioner's application, in a proceeding pursuant toSocial Services Law § 384-b, to adjudicate Eric G. and Michelle G. to be permanentlyneglected children, and terminated respondent's parental rights.
Respondent is the father of Eric G. (born in 1992) and Michelle G. (born in 1995). InOctober 2004, after having been removed from respondent's care and placed with their maternalgrandmother, Eric and Michelle were deemed neglected and placed in petitioner's custody. InMarch 2006, petitioner commenced this permanent neglect proceeding against respondent [*2]seeking an adjudication that Eric and Michelle were permanentlyneglected.[FN1]Following fact-finding and dispositional hearings, Family Court found that respondent failed toplan for the future of the children, adjudicated Eric and Michelle to be permanently neglectedand determined that it was in their best interests to terminate respondent's parentalrights.[FN2]This appeal by respondent ensued.
Initially, we are unpersuaded by respondent's contention that petitioner failed to fulfill itsstatutory obligation to engage in diligent efforts to encourage and strengthen his parentalrelationship with his children (see Social Services Law § 384-b [7] [a], [c]). Theevidence at the fact-finding hearing established that Eric and Michelle were removed fromrespondent's custody due in large part to the unsafe and uninhabitable conditions of his homewhich had been condemned by a code enforcement officer. After removal, petitioner providedrespondent with various services, including caseworker counseling, homemaker services to assistrespondent with parenting, home safety and household organization issues, service plan reviewsand transportation to scheduled supervised visitation with the children. In addition, in connectionwith these services, respondent was referred to and received assistance from a youth advocacyprogram and he was also informed that he could obtain help with his home heating needsthrough the Home Energy Assured Program. Such services established, by clear and convincingevidence, that petitioner made relevant and meaningful efforts to assist respondent in resolvingthe circumstances that led to the removal of the children in order to reunite the family (seeMatter of Sheila G., 61 NY2d 368, 373 [1984]; Matter of Isaiah F., 55 AD3d 1004, 1004-1005 [2008]; Matter of Andrew Z., 41 AD3d912 [2007]).
Diligent efforts on the part of petitioner having been established, it was incumbent uponrespondent to demonstrate, under the circumstances relevant herein, that he planned for thefuture of the children by taking the necessary steps to provide an adequate, stable home andparental care within a reasonable time given his existing financial circumstances (seeSocial Services Law § 384-b [7] [c]; Matter of Star Leslie W., 63 NY2d 136, 143[1984]; Matter of Isaiah F., 55 AD3d at 1005). A parent's cooperation with andutilization of services recommended by the agency are taken into account in determiningwhether the parent's statutory obligation has been fulfilled (see Matter of Jamie M., 63NY2d 388, 393 [1984]; Matter of Matthew C., 227 AD2d 679, 681 [1996]). At the veryleast, a parent must take meaningful steps to address the issues leading to the child's removalfrom the home (see Matter of Matthew C., 227 AD2d at 681).
Here, the record establishes that, despite some progress during the two years the childrenwere in petitioner's care, respondent did not successfully complete the recommended services.Rather than taking some responsibility for the removal of the children from his care, respondentclaimed bias against him on the part of the code enforcement officer who condemned hisresidence, the caseworker, petitioner, the foster parents and Family Court. This attitude often[*3]led to respondent being uncooperative with the serviceproviders and disruptive during visitation with the children. The assigned caseworker testifiedthat respondent did not sufficiently benefit from the services or devise an appropriate plan for thereturn of the children.
Furthermore, with respect to the condition of his residence, although respondent hadprogressed with the repairs, the service providers testified that, at the time the permanent neglectproceeding was commenced, respondent's residence was still not suitable for the children'sreturn. In view of the totality of circumstances herein, we cannot conclude that Family Courterred in finding that respondent permanently neglected his children.
Before turning to the dispositional order, we find without merit respondent's contention thatcounsel's failure to introduce respondent's testimony on the subject of his finances constitutedineffective assistance of counsel. Here, counsel sought to introduce evidence of respondent'sfinancial status through other witnesses. Thus, the decision not to have respondent testify can beviewed as a trial strategy or tactic and will not be second-guessed by this Court (see Matter of Christopher W., 42AD3d 692, 693 [2007]). Moreover, upon our review of this record, we are satisfied thatrespondent received meaningful representation and suffered no actual prejudice as a result of hisattorney's representation (see Matter ofChaquill R., 55 AD3d 975, 977 [2008]; Matter of Brenden O., 20 AD3d 722, 723 [2005]).
Addressing the dispositional order, we note that the sole criterion to be considered at thedispositional hearing is the best interests of the children (see Family Ct Act § 631;Matter of Princess C., 279 AD2d 825, 828 [2001]). Although we are mindful of thedeference we accord to Family Court, upon this record, we cannot agree that terminatingrespondent's parental rights and freeing the children for adoption serves the best interests of thechildren. The record establishes that the children participated in regular weekly visitation withrespondent following their removal from his care. Furthermore, we note that Eric never indicateda desire to be adopted and Michelle expressed her desire to return to respondent's home and/orbe adopted by her sister who currently lives with respondent. Moreover, although the fosterparents planned to adopt the younger siblings, there was no testimony that the foster parentsintended to adopt Eric and Michelle. In addition, with respect to respondent's obligation to planfor the return of the children, we note that the repairs to his home have been completed.
Under these circumstances, and given the age of the children, there is inadequate support inthe record to establish the need to terminate respondent's parental rights. Rather, we find that asuspended judgment would more appropriately serve the children's best interests (seeFamily Ct Act § 631 [b]; § 633; Matter of Audrey I., 57 AD3d 1172, 1175 [2008]; Matter ofLisa Z., 278 AD2d 674, 679-680 [2000]). Therefore, we remit the matter to Family Court forfurther dispositional proceedings with regard to the entry of a suspended judgment, theconditions and duration of which are to be determined by that court.
Finally, respondent's remaining contentions have been reviewed and found to be withoutmerit.
Mercure, Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the order is modified, onthe law and facts, without costs, by reversing so much thereof as terminated respondent'sparental rights; matter remitted to the Family Court of St. Lawrence County for furtherproceedings not inconsistent with this Court's decision; and, as so modified, affirmed.
Footnote 1: A separate permanent neglectproceeding was also commenced against the mother seeking an adjudication that shepermanently neglected said children as well as two of her other children.
Footnote 2: Family Court also determinedthat the mother had permanently neglected all four children and terminated her parental rights.