| Matter of Lindsey BB. (Ruth BB.) |
| 2010 NY Slip Op 02701 [72 AD3d 1162] |
| April 1, 2010 |
| Appellate Division, Third Department |
| In the Matter of Lindsey BB. and Another, Neglected Children.Columbia County Department of Social Services, Respondent; Ruth BB. et al., Appellants.(Proceeding No. 1.) In the Matter of Lindsey BB. and Another, Neglected Children. ColumbiaCounty Department of Social Services, Respondent; Mark BB., Appellant. (Proceeding No. 2.)In the Matter of Lindsey BB. and Another, Neglected Children. Columbia County Department ofSocial Services, Respondent; Ruth BB., Appellant. (Proceeding No.3.) |
—[*1] Cliff Gordon, Monticello, for Mark BB., appellant. Katrina Dryer, Columbia County Department of Social Services, Hudson (James A.Carlucci, Hudson, of counsel), for respondent. Jehed Diamond, Law Guardian, Delhi.
Mercure, J.P. Appeals (1) from an order of the Family Court of Columbia County (Czajka,J.), entered April 27, 2009, which granted petitioner's application, in proceeding No. 1 pursuantto Family Ct Act article 10-A, to extend the placement of respondents' children, (2) from anorder of said court, entered April 27, 2009, which, among other things, granted petitioner'sapplication, in proceeding No. 2 pursuant to Family Ct Act article 10, to hold respondent inwillful violation of prior court orders, and (3) from an order of said court, entered April 27,2009, which, among other things, granted petitioner's application, in proceeding No. 3 pursuantto Family Ct Act article 10, to hold respondent in willful violation of prior court orders.
Respondents in proceeding No. 1, Ruth BB. (hereinafter the mother) and Mark BB.(hereinafter the father), are the parents of a daughter (born in 1992) and a son (born in 1994).The children were removed and placed in foster care, and we recently affirmed Family Court'sdetermination that respondents had neglected both (Matter of Lindsey BB. [Ruth BB.], 70 AD3d 1205 [2010]).Petitioner thereafter filed violation petitions against the father (proceeding No. 2) and the mother(proceeding No. 3), alleging numerous violations of, among other things, the order ofdisposition. Petitioner also submitted a permanency hearing report in proceeding No. 1 that,despite noting respondents' numerous failures to abide by the dispositional order, proposed apermanency planning goal of returning the children to them. Following a combined hearing,Family Court found that respondents had willfully violated prior orders and directed thatpetitioner file termination of parental rights petitions against them. The court further rejected theproposed permanency planning goal and absolved petitioner of its responsibility to makereasonable efforts to reunify the family, and it ultimately issued a permanency hearing orderapproving an amended report that set forth a goal of placement for adoption. Respondentsseparately appeal from the violation orders, as well as the permanency hearing order.
Initially, petitioner established by clear and convincing evidence that respondents willfullyviolated the order of disposition and orders requiring them to submit to drug testing (seeFamily Ct Act § 1072; Matter ofBlaize F., 48 AD3d 1007, 1008 [2008]). Respondents admitted that they had failed tocomply with the orders by, among other things, refusing to undergo drug tests, attend counselingand other mandated programs, and execute releases that would allow petitioner to confirm theirwholly unsubstantiated claims that they underwent required substance abuse evaluations. Asidefrom sheer intransigence, the only explanation offered for their conduct [*2]was that they were awaiting the outcome of their appeal from theneglect determination prior to complying. Respondents were obliged to obey that determinationand other orders emanating from it absent a stay, however, and Family Court properly found thattheir failure to do so was willful (seeState of New York v Rosse, 18 AD3d 982, 983-984 [2005]; Russell v Tejada, 4 AD3d 661,661 [2004]; Burchell v Cimenti, 38 AD2d 897 [1972]).
Turning to the permanency hearing order, Family Court was empowered to modify thepermanency goal for the children (see Family Ct Act § 1089 [d] [2] [i]; [e]; Matter of Rebecca KK., 55 AD3d984, 986 [2008]), and respondents' wholesale failure to engage in services since the childrenentered foster care provided a sound and substantial basis in the record for its decision to do sohere (see Matter of Patrice S., 63AD3d 620, 621 [2009]; Matter of Rebecca KK., 55 AD3d at 986; Matter of Jennifer R., 29 AD3d1003, 1004-1005 [2006]). Likewise, that failure provided "reasonable cause to believe thatgrounds for termination of parental rights exist[ed]" against them, and Family Courtappropriately directed petitioner to file termination petitions (Family Ct Act § 1089 [d] [2][viii] [E]; see Social Services Law § 384-b [4] [d]; [7] [a], [c]; Matter of Dante Devon A., 52 AD3d241, 241-242 [2008]; Matter of Israel Zacarias G., 306 AD2d 106, 106-107 [2003]).Nor are we persuaded by respondents' unpreserved argument that Family Court erroneouslyrefused to conduct a permanency hearing following the issuance of the amended permanencyhearing report.[FN1]
We do, however, agree with respondents that Family Court improperly granted petitioner'sapplication to be relieved of its obligation to make reasonable efforts to return the children torespondents' home. Petitioner's request for that relief was procedurally improper, as itsapplication was not in writing and there is no indication that the issue was raised prior to thecombined permanency and violation hearing (see Family Ct Act § 1039-b [a], [b][1]; Matter of Damion D., 42 AD3d715, 716 [2007]).[FN2]In any event, the application should have been denied on the merits, as the requisite showing ofaggravated circumstances was not made (see Family Ct Act § 1039-b [b] [1]).Inasmuch as this case solely involves issues of neglect, that finding must be based upon swornadmissions from respondents that their uncooperative behavior would continue in the future,despite a warning that those admissions "could eliminate the requirement that [petitioner]provide reunification services to the parent" (Family Ct Act § 1012 [j]). Neither thewarning nor the admissions occurred here, and a finding of aggravated circumstances wastherefore inappropriate.
Lastly, we are unpersuaded that further proceedings should be conducted before a differentFamily Court judge.[*3]
Lahtinen, Malone Jr., McCarthy and Garry, JJ., concur.Ordered that the order entered April 27, 2009 in proceeding No. 1 is modified, on the law andthe facts, without costs, by reversing so much thereof as relieved petitioner of its obligation tomake reasonable efforts to reunite the children with respondents; petition denied to that extent;and, as so modified, affirmed. Ordered that the orders entered April 27, 2009 in proceedings No.2 and 3 are affirmed, without costs.
Footnote 1: The mother's relatedconstitutional challenge to Family Ct Act § 1089 is not properly before us due to herfailure to either raise it before Family Court or provide the requisite notice to the AttorneyGeneral (see Executive Law § 71 [3]; Matter of Coleman v Thomas, 295AD2d 508, 509 [2002]).
Footnote 2: While the mother did not objectto the application, both the father and the Law Guardian did, and we will exercise our discretionwith respect to this issue (see Matter of Damion D., 42 AD3d at 716; cf. Matter of Stephiana UU., 66 AD3d1160, 1164 [2009]).