| Matter of Alaina E. |
| 2009 NY Slip Op 01375 [59 AD3d 882] |
| February 26, 2009 |
| Appellate Division, Third Department |
| In the Matter of Alaina E. and Others, Children Alleged to bePermanently Neglected. Broome County Department of Social Services, Respondent; Melinda E.et al., Appellants. |
—[*1] Paul J. Connolly, Delmar, for Gary D., appellant. Kuredin V. Eytina, Broome County Department of Social Services, Binghamton, forrespondent. J. Mark McQuerrey, Law Guardian, Hoosick Falls.
Malone Jr., J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered October 23, 2007, which granted petitioner's application, in a proceeding pursuant toSocial Services Law § 384-b, to adjudicate the subject children to be permanentlyneglected, and terminated respondents' parental rights.
Respondent Melinda E. is the mother of Alaina E. (born in 1996), Dakota E. (born in 1997),Kaitlyn D. (born in 1998) and Elizabeth D. (born in 2000), the four children who are the subjectof the instant permanent neglect proceeding.[FN1]Respondent Gary D. [*2]is the biological father of Kaitlyn andElizabeth, and resided with all four children during the course of his relationship with theirmother.[FN2]Respondents separated in 2003 and Gary established his own residence. In July 2004, while thechildren were in his care, Gary left them alone with his brother, a known sex offender, whosexually molested one of them. As a result, petitioner removed the children from respondents'custody and placed them in foster care. Family Court subsequently found that the children wereneglected by respondents. In April 2005, Family Court issued a dispositional order which,among other things, continued custody of the children with petitioner for 12 months and directedrespondents to receive services, which included their participation in various counseling andtreatment programs, necessary for reunification with the children. Family Court's findings wereupheld by this Court on appeal (Matterof Alaina E., 33 AD3d 1084 [2006]).
In June 2006, petitioner initiated this permanent neglect proceeding against respondentsseeking to terminate their parental rights. Following fact-finding and dispositional hearings,Family Court granted the petition and terminated respondents' parental rights. Respondents nowappeal.
Initially, we note that "[t]o obtain a termination of parental rights based upon permanentneglect, petitioner is required to prove by clear and convincing evidence that the parent failed tomaintain contact with or plan for the future of his or her child for one year after the child cameinto petitioner's custody notwithstanding petitioner's diligent efforts to strengthen theparent-child relationship" (Matter ofMelissa DD., 45 AD3d 1219, 1220 [2007], lv denied 10 NY3d 701 [2008];see Social Services Law § 384-b [7] [a]; Matter of Star Leslie W., 63NY2d 136, 140 [1984]). The threshold inquiry is whether petitioner exercised diligent efforts tostrengthen the parent-child relationship by "offering appropriate services, such as counseling andtreatment opportunities, arranging supervised visitation and creating a service plan to movetowards unification, and encourages the parent's participation" (Matter of James X., 37 AD3d1003, 1006 [2007]; see Social Services Law § 384-b [7] [a], [f]; Matter ofJamie M., 63 NY2d 388, 395 [1984]; Matter of Melissa DD., 45 AD3d at 1220;Matter of Shawna U., 277 AD2d 731, 732 [2000]).
Contrary to respondents' contentions, the record discloses that petitioner undertook diligentefforts to strengthen the parent-child relationship in the case at hand. In accordance with thedispositional order, petitioner devised service plans that made available to respondents parentingclasses, mental health therapy, anger management counseling, substance abuse services andsexual abuse treatment. Through the provision of these services and its caseworkers' interactionwith respondents, petitioner sought to encourage them to remedy the problems which led to theremoval of the children from their care. In addition, it arranged for visitation with the childrenand offered to reimburse respondents for transportation expenses. Moreover, after Melindamoved to Clinton County to give birth to her ninth child, petitioner worked with the ClintonCounty Department of Social Services to coordinate the services recommended for her. [*3]Petitioner also provided respondents with updates on the children'sprogress through its contact with the foster parents. In our view, the foregoing constitutes clearand convincing evidence that petitioner met its statutory obligation (see Matter of Gerald BB., 51 AD3d1081, 1084 [2008], lv denied 11 NY3d 703 [2008]; Matter of Maelee N., 48 AD3d929, 930 [2008], lv denied 10 NY3d 709 [2008]).
Our conclusion is not altered by the fact that petitioner encouraged respondents to attend sexabuse counseling for offenders even though the dispositional order provided that the counselingto be provided was for nonoffenders. Neither Melinda nor Gary had been adjudicated a sexualoffender and petitioner's directive appears to have been based upon the unsubstantiated reports oftwo of the children. Even though this particular type of counseling was not appropriate to thesituation, petitioner nevertheless proposed sufficient other realistic programs designed to assistrespondents in overcoming the problems preventing the return of their children so as todemonstrate that it exercised the necessary diligent efforts required by the statute (see Matterof Lisa Z., 278 AD2d 674, 676-677 [2000]).
"Once an agency has demonstrated that it has made the requisite diligent efforts, the parentmust show that his or her problems have been addressed and that there is a meaningful plan forthe child's future" (Matter of James X., 37 AD3d at 1006 [citation omitted]). Thisincludes, but is not limited to, utilizing available medical, mental, social and rehabilitativeservices and material resources, as well as providing a stable and adequate home environment(see Social Services Law § 384-b [7] [c]; see also Matter of Nathaniel T.,67 NY2d 838, 840 [1986]; Matter ofElijah NN., 20 AD3d 728, 729 [2005]). At a minimum, the parents must "takemeaningful steps toward alleviating the conditions that led to the children's removal from theirhome" in the first instance (Matter of Lisa Z., 278 AD2d at 677; see Matter ofChristopher II., 222 AD2d 900, 901-902 [1995], lv denied 87 NY2d 812 [1996]).
Turning first to Gary, while evidence was presented that he completed a number ofprograms, he completely denied having an alcohol abuse problem and would not cooperate inobtaining treatment, despite the reports of his girlfriend that he used alcohol in excess. Inaddition, he moved a number of times and did not obtain housing that was suitable for thechildren. Moreover, he continued to associate with individuals, like his brother, who hadhistories of sexually abusing children. Furthermore, during supervised visitation, Gary did notengage the children in conversation or provide necessary discipline and often times appearedanxious for the visitation to end.
With regard to Melinda, evidence was presented that although she also participated in somesuggested programs, she voluntarily moved to Clinton County shortly after the children wereplaced with petitioner and remained there for more than two years. Her priority was remaining inClinton County with the father of her new baby, even after the baby was adjudicated a neglectedchild in April 2005 and removed from her care. She stayed with this man, whom she married inNovember 2006, even though he had a history of involvement with child protective servicesregarding his own daughter. While she resided in Clinton County, Melinda had sporadic andinfrequent contact with the children. She often missed scheduled visitation appointments and,although she complained of transportation problems, she declined petitioner's offer of bus passesso that she could visit the children four times a year.
In view of the foregoing, we find that the record contains clear and convincing evidence[*4]that respondents failed to realistically plan for their children'sfuture so as to facilitate the return of the children to their care (see Matter of Jayde M., 36 AD3d1168, 1170 [2007], lv denied 8 NY3d 809 [2007]). Accordingly, under thecircumstances presented, Family Court properly adjudicated the children to be permanentlyneglected and terminated respondents' parental rights. Respondents' remaining contentions areeither unpreserved for our review or are lacking in merit.
Mercure, J.P., Peters, Kane and Stein, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote 1: It is to be noted that Melindahas had a total of nine children, each of whom has been removed from her home due to neglect(see Matter of Evelyn B., 30 AD3d913, 914 [2006], lv denied 7 NY3d 713 [2006]; Matter of Ashley E., 271AD2d 764 [2000]).
Footnote 2: The biological father of Alaniaand Dakota voluntarily surrendered his parental rights to these children.