| Matter of Mary MM. (Leuetta NN.) |
| 2010 NY Slip Op 03508 [72 AD3d 1427] |
| April 29, 2010 |
| Appellate Division, Third Department |
| In the Matter of Mary MM., a Child Alleged to be PermanentlyNeglected. Broome County Department of Social Services, Respondent; Leuetta NN.,Appellant. |
—[*1] Thomas P. Coulson, Broome County Department of Social Services, Binghamton, forrespondent. Kathleen M. Spann, Law Guardian, Greene.
Egan Jr., J. Appeal from an order of the Family Court of Broome County (Pines, J.), enteredMay 22, 2009, which granted petitioner's application, in a proceeding pursuant to Social ServicesLaw § 384-b, to adjudicate respondent's child to be permanently neglected, and terminatedrespondent's parental rights.
In June 2005, respondent voluntarily placed her daughter (born in 1998) with petitioner afterit was discovered that respondent allowed a convicted sex offender (her boyfriend) to reside inthe home and have access to the child. The child was placed with a foster family where shecurrently remains. In August 2005, an amended neglect and abuse petition was filed based onallegations that, prior to the child's removal from the home, respondent observed her boyfriendsexually abuse her daughter, yet took no action. After a fact-finding hearing, Family Court found[*2]the child to have been neglected by respondent.[FN*]After a dispositional hearing, Family Court ordered that respondent be placed under petitioner'ssupervision and that she access and benefit from a variety of services including, among otherthings, literacy training and parenting classes. Respondent was also ordered to participate inassessments, counseling and treatment on the basis that she permitted a known sex offender to bearound her child.
In June 2008, petitioner filed this permanent neglect petition pursuant to Social ServicesLaw § 384-b. After a fact-finding hearing, Family Court adjudicated the child to bepermanently neglected. Following dispositional and permanency hearings, Family Court orderedthat respondent's parental rights be terminated. Respondent now appeals, contending thatpetitioner failed to sustain its burden of proving that it made diligent efforts to strengthen andencourage the parental relationship, and respondent failed to maintain contact with and failed toprepare for the future of the child. We disagree.
"In order to terminate a parent's rights on the basis of permanent neglect, the petitioner mustshow by clear and convincing evidence for the relevant one year period either that the parent (1)failed to substantially and continuously maintain contact with the child, or alternatively, (2)failed to plan for the future of the child, although physically and financially able to do so,notwithstanding the agency's diligent efforts to encourage and strengthen the parentalrelationship" (Matter of Joseph ZZ., 245 AD2d 881, 883 [1997], lv denied 91NY2d 810 [1998]; see Social Services Law § 384-b [7] [a]; Matter of MatthewYY., 274 AD2d 685, 686 [2000]). Here, petitioner provided respondent with a caseworker in2005, who met with respondent and visited respondent's apartment numerous times during thethree years prior to the filing of the permanent neglect petition. The caseworker providedrespondent with access to mental health and literacy volunteers, arranged for an IQ test, arrangedfor respondent to attend parenting classes and set up appointments with the Family andChildren's Sexual Abuse Project for protective ally counseling. Additionally, the caseworkerrepeatedly counseled respondent regarding the need for a stable, secure and sanitary residence,the need to keep knives and prescription medications out of her child's reach, to keep doorslocked and to contact her landlord about necessary repairs and code enforcement. She alsosuggested that respondent seek out alternative housing and offered assistance in filling outapplications. The caseworker arranged for visitation with the child outside the home due to theunsanitary condition of the home, and provided respondent with a bus pass to facilitate thosevisits and to enable respondent to attend counseling and therapeutic appointments. Finally, thecaseworker purchased gifts for respondent to give to the child. In view of this evidence, we findthat petitioner exercised diligent efforts in seeking to reunite respondent with the child(see Social Services Law § 384-b [7] [a]; Matter of Star Leslie W., 63NY2d 136, 142 [1984]; Matter ofLaelani B., 59 AD3d 880, 881 [2009]; Matter of George M., 48 AD3d 926, 927 [2008]).[*3]
Likewise, contrary to respondent's argument, the recordsupports the conclusion that respondent did not adequately plan for the child's future (see Matter of George M., 48 AD3d926, 927 [2008]; Matter of JamesX., 37 AD3d 1003, 1006 [2007]). While respondent participated in most servicesoffered, the record reflects little, if any, benefit (see Matter of Joseph ZZ., 245 AD2d at883). Although respondent was repeatedly counseled regarding the need to keep a safe andsanitary home, the caseworker observed deplorable conditions during home visits; she observedthat the apartment was generally filthy with overflowing garbage and spoiled food, whichrespondent failed to remedy from visit to visit. The caseworker also noted that the bathroomwent uncleaned, and human feces was observed in the bathroom sink, over the toilet paper rolland on soiled undergarments and towels that were strewn on the floor. On one occasion, thecaseworker observed photographs of respondent without clothes that were left on the coffeetable.
Even apart from respondent's repeated failure to remedy the deplorable and unsanitaryconditions evidenced in the home, she has continuously failed to be a protective ally for thechild. For example, at many home visits the caseworker noted that the apartment door was leftopen and, on one occasion, observed an unknown individual enter the home through theunlocked door. Respondent failed to protect the child from the aggressive behavior of her oldermale cousin who resides next door to respondent. This cousin had free access to respondent'sapartment and had recently exhibited sexually inappropriate behavior. Even more disturbing,after completing the Protective Allies for Children Education program, respondent attempted topersuade the child to recant allegations of sexual abuse. Thus, we find that respondent has utterlyfailed in removing the destructive elements that led to the filing of the neglect and abusepetitions in the first place.
We find that respondent's limited intellect "neither exonerated her from planning for herchild nor precluded petitioner from seeking to terminate respondent's right to custody for failingto meet her responsibility" (Matter of Chuck PP., 158 AD2d 859, 861 [1990], lvdenied 75 NY2d 710 [1990]; see Matter of John ZZ., 192 AD2d 761, 762 [1993]). Inlight of the evidence that the child is thriving with her foster family, who wishes to adopt her, wereject respondent's contention that a suspended judgment, rather than termination of respondent'sparental rights, would have been in the best interest of the child (see Matter of Kayla KK. [Tracy LL.],68 AD3d 1207, 1209 [2009]; Matter of Laelani B., 59 AD3d at 882). Finally,respondent's remaining contentions have been considered and found to be without merit.
Mercure, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: By decision entered March 1,2007, we affirmed Family Court's determination that the child was neglected based on thefinding that respondent knew her boyfriend was a convicted sex offender, yet permitted him toremain in the home (Matter of MaryMM., 38 AD3d 956 [2007]). In that proceeding, we noted that the child was previouslysexually abused by a 13-year-old boy, the child's father was also a convicted sex offender andrespondent admitted to dating another man who had been convicted of indecent exposure(id.).