| Matter of Christopher V. (Jazmin V.) |
| 2010 NY Slip Op 03341 [72 AD3d 980] |
| April 20, 2010 |
| Appellate Division, Second Department |
| In the Matter of Christopher V., a Child Alleged to be PermanentlyNeglected. Westchester County Department of Social Services, Respondent; Jazmin V.,Appellant. |
—[*1] Robert F. Meehan, County Attorney, White Plains, N.Y. (Stacey Dolgin-Kmetz and MaryLynn Nicolas-Brewster of counsel), for respondent. Theresa M. Daniele, White Plains, N.Y., attorney for the child.
In a proceeding pursuant to Social Services Law § 384-b to terminate parental rightson the ground of permanent neglect, the mother appeals from so much of an order of fact-findingand disposition of the Family Court, Westchester County (Duffy, J.), dated April 28, 2009, as,after a fact-finding hearing, granted the petition on the ground that she permanently neglectedthe child, terminated her parental rights to the subject child, and transferred the guardianship andcustody of the child to the Westchester County Department of Social Services for the purpose ofconsenting to his adoption.
Ordered that the order is modified, on the law, by deleting the provision thereof terminatingthe mother's parental rights to the subject child and transferring guardianship and custody of thechild to the Westchester County Department of Social Services for the purpose of consenting tohis adoption; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements, the finding of permanent neglect remains in effect, and the matter is remitted tothe Family Court, Westchester County, for a dispositional hearing in accordance herewith, and anew disposition thereafter.
The petitioner established by clear and convincing evidence that for at least one year afterplacement of the subject child with an authorized agency, the mother failed to substantially andrepeatedly maintain contact with or plan for the future of the child, notwithstanding the agency'sdiligent efforts to encourage and strengthen the parental relationship (see Social ServicesLaw § 384-b [7] [a]; Matter of Star Leslie W., 63 NY2d 136, 142-143 [1984]; Matter of Angelo D., 61 AD3d683 [2009]; Matter of LeavonMarvin B., 60 AD3d 941 [2009]; Matter of Aliyanna M., 58 AD3d 853, 853-854 [2009]; Matter of "Female" C., 55 AD3d603, 604 [2008]).
Contrary to the mother's contention, the Family Court did not err in considering her time at adrug-treatment facility in determining whether she permanently neglected the child. Except forthe first [*2]30 days at the drug-treatment facility, the mother wasnot prevented from visiting with the child or planning for his future. Thus, she was not"institutionalized" or "hospitalized" within the meaning of Social Services Law § 384-b(7) (d) (ii) (see Matter of Regina M. C., 139 AD2d 929, 929-930 [1988]).
However, the Family Court erred in failing to hold a dispositional hearing in the absence ofconsent of the parties (see Family Ct Act § 625 [a]; Matter of Imani M., 61 AD3d870, 871 [2009]). Accordingly, the matter must be remitted to the Family Court,Westchester County, for a dispositional hearing to determine the child's best interests and a newdisposition thereafter. Rivera, J.P., Angiolillo, Balkin and Leventhal, JJ., concur.