| Matter of Austin C. (Alicia Y.) |
| 2010 NY Slip Op 07756 [77 AD3d 938] |
| October 26, 2010 |
| Appellate Division, Second Department |
| In the Matter of Austin C. Orange County Department of SocialServices, Respondent; Alicia Y., Appellant, et al., Respondent. (Proceeding No. 1.) In the Matterof Britney Y. Orange County Department of Social Services, Respondent; Alicia Y., Appellant,et al., Respondent. (Proceeding No. 2.) In the Matter of Taylor C. Orange County Department ofSocial Services, Respondent; Alicia Y., Appellant, et al., Respondent. (Proceeding No.3.) |
—[*1] David L. Darwin, County Attorney, Goshen, N.Y. (Christine Foy-Stage of counsel), forpetitioner-respondent. Neal D. Futerfas, White Plains, N.Y., attorney for the children.
In three related proceedings pursuant to Social Services Law § 384-b to terminateparental rights on the ground of permanent neglect, the mother appeals from an order of theFamily Court, Orange County (Bivona, J.), entered February 19, 2009, which, after fact-findingand dispositional hearings, found that she permanently neglected the children, and suspendedjudgment against her until January 8, 2010, provided that she complied with enumerated termsand conditions.
Ordered that the order is reversed, on the law and the facts, without costs or disbursements,the petitions are denied, and the proceedings are dismissed.
The petitioner commenced these proceedings, inter alia, to terminate the mother's parentalrights, alleging that the children were permanently neglected. By proceeding on this ground, thepetitioner was obligated to prove, by clear and convincing evidence, that the mother "failed for aperiod of either at least one year or fifteen out of the most recent twenty-two months followingthe date such child[ren] came [*2]into the care of an authorizedagency substantially and continuously or repeatedly to maintain contact with or plan for thefuture of the child[ren], although physically and financially able to do so, notwithstanding theagency's diligent efforts to encourage and strengthen the parental relationship when such effortswill not be detrimental to the best interests of the child[ren]" (Social Services Law § 384-b[7] [a]).
The petitioner established, by clear and convincing evidence, that it made diligent efforts toencourage and strengthen the parental relationship by scheduling and providing transportation forvisitation; making referrals for mental health and substance abuse evaluations and treatment;making a referral for parenting skills classes; visiting the mother at her home; schedulingappointments with the mother outside of the home; encouraging the mother to comply with therequest that she avail herself of these services; regularly speaking with the mother by telephone;and warning the mother of the consequences of noncompliance (see Social Services Law§ 384-b; Matter of Star Leslie W., 63 NY2d 136, 142-143 [1984]; Matter of Teshana Tracey T. [Janet T.],71 AD3d 1032 [2010], lv denied 14 NY3d 713 [2010]; Matter of Jada Ta-Toneyia L., 66AD3d 901 [2009]).
The petitioner, however, failed to establish, by clear and convincing evidence, that during therelevant period of time, the mother failed to maintain contact with or plan for the future of herchildren. The record demonstrates that the mother maintained contact with the children throughvisitation, and planned for the children's future by substantially complying with the terms of aprior court order; completing a parenting skills class; executing release of information forms;notifying the petitioner, for the most part, of all changes of address or telephone number;undergoing a mental health evaluation and participating in treatment; undergoing a drug andalcohol evaluation; moving to a new apartment; participating in counseling with the children andcommunicating with the children's doctors; obtaining gainful employment; and causing herbrother to become a certified therapeutic foster parent to care for the children while theyremained in care. The mother's failure to meet with the petitioner's caseworker at least monthly,and her failure to continue with counseling after she had been discharged, absent proof thatfurther counseling was warranted, did not establish the mother's failure "to take such steps asmay be necessary to provide an adequate, stable home and parental care for the child[ren] withina period of time which is reasonable under the financial circumstances available to the parent"(Social Services Law § 384-b [7] [c]). Under these circumstances, the Family Court shouldhave denied the petitions on the merits, and dismissed the proceedings (see SocialServices Law § 384-b; Matter ofAntonio I., 26 AD3d 331 [2006]; Matter of Donovan R., 10 AD3d 398 [2004]; Matter ofMarielene T.R., 253 AD2d 882 [1998]; cf. Matter of Michael B., 58 NY2d 71[1983]).
In light of our determination, we need not address the mother's remaining contentions.Dillon, J.P., Florio, Roman and Sgroi, JJ., concur.