| Matter of Tatianna K. (Claude U.) |
| 2010 NY Slip Op 08820 [79 AD3d 1184] |
| December 2, 2010 |
| Appellate Division, Third Department |
| In the Matter of Tatianna K., a Child Alleged to be PermanentlyNeglected. Otsego County Department of Social Services, Respondent; Claude U., Appellant, et al.,Respondent. |
—[*1] Steven Ratner, Otsego County Department of Social Services, Cooperstown, for respondent. Kelly M. Eckmair, Oneonta, attorney for the child.
Rose, J. Appeal from an order of the Family Court of Otsego County (Burns, J.), entered August24, 2009, which granted petitioner's application, in a proceeding pursuant to Social Services Law§ 384-b, to adjudicate respondents' child to be permanently neglected.
Respondents are the parents of Tatianna K. (born in 2006). After Family Court found that theparents had neglected the child, they separated and, in August 2007, the child was placed in fostercare. While respondent Jolene V. (hereinafter the mother) then had intermittent contact with the childand she eventually disengaged from all services, respondent Claude U. (hereinafter the father) began tostabilize his life and to address the problems that led to the removal of the child. In January 2009,however, petitioner commenced this proceeding against both parents seeking a determination ofpermanent neglect and termination of parental rights. Following a [*2]fact-finding hearing at which the mother did not appear, Family Courtadjudicated the child to be permanently neglected by both parents. The father now appeals, contendingthat petitioner neither exercised diligent efforts to reunite him with the child nor proved by clear andconvincing evidence that he failed to plan for the child's future.
An agency seeking to establish permanent neglect must prove that it made diligent efforts tostrengthen the parent-child relationship and that, despite those efforts, the parent has failed to maintaincontact with the child or, as is relevant here, substantially plan for the child's future for one year after theagency has been charged with the child's care (see Social Services Law § 384-b [7] [a];Matter of Jasmine F. [Jeffrey G.], 74AD3d 1396, 1398 [2010]). An agency engages in diligent efforts by creating a service plan thatoffers appropriate services to the parents to resolve the problems preventing return of the child, makingsuitable arrangements for visitation and advising the parent of the child's progress and development(see Social Services Law § 384-b [7] [f]; Matter of Star Leslie W., 63 NY2d136, 142 [1984]; Matter of James X.,37 AD3d 1003, 1005-1006 [2007]). Contrary to the father's contention, the record supportsFamily Court's finding that a service plan was in place, visitations with the child were facilitated bypetitioner, appropriate services were offered to the father to address the problems that led to the child'sremoval and the plan was reviewed and updated in a sufficiently timely manner (see Matter of Laelani B., 59 AD3d880, 881 [2009]; Matter of AlainaE., 59 AD3d 882, 884-885 [2009], lv denied 12 NY3d 710 [2009]; Matter of Andrew Z., 41 AD3d 912,912 [2007]).
There is merit, however, in the father's contention that petitioner failed to establish that he did notsubstantially plan for the future of the child. A parent plans for the future by utilizing available medical,social and psychological services as needed and providing a stable and adequate home environment(see Matter of Gregory B., 74 NY2d 77, 87 [1989]; Matter of Star Leslie W., 63NY2d at 142-143). To substantially plan, the parent must take meaningful steps to correct theconditions that led to the child's removal (see Matter of Nathaniel T., 67 NY2d 838, 840[1986]; Matter of Alaina E., 59 AD3d at 885). However, the standards to evaluate whether aparent has met the requirement to "substantially plan" should not be set "unrealistically high," lest theplanning requirement "become simply a device to permit termination in nearly all cases where the otherstatutory conditions are met" (Matter of Orlando F., 40 NY2d 103, 111 [1976]).
Here, the evidence established that, as part of the plan formulated by petitioner to address thefather's ability to parent Tatianna, the father needed to stabilize his housing situation, abstain fromaddictive substances and address his history of problems with anger management and domesticviolence. Petitioner does not now dispute that soon after the father's separation from the mother and herchaotic lifestyle, he entered into a stable, committed relationship with a female companion andestablished suitable housing for the child. Nor does petitioner now dispute that the issue of substanceabuse also was resolved by the father well within the one-year period following placement. The recordconfirms that he obtained a release from the Chemical Dependencies Clinic indicating that he had notused alcohol since January 2008 and did not need further treatment for substance abuse. Further, thefoster care caseworker assigned to the case was aware of no incidents of domestic violence followingthe father's separation from the mother, and Family Court's decision did not mention stable housing,domestic violence or substance abuse as factors warranting a finding that the child was permanentlyneglected by the father.
Instead, Family Court focused on the father's failure to commence anger management counselingand parenting education classes until the fall of 2008, more than one year after the child's initialplacement date. We note, however, that the Deputy Director of the Otsego County [*3]Mental Health Clinic and the senior caseworker providing parentaleducation each testified that the father was fully engaged in their programs, undergoing cognitivebehavioral therapy and making significant progress in addressing his issues. The parental educatortestified that, as of the time of the filing of the petition, the father had completed almost 70% of thecourse, was actively involved, expressed an understanding of the lessons and was able to implementwhat he had learned in his relationship with the child. To the extent that the court disregarded thesemeaningful steps taken by the father after the expiration of the one-year period and characterized themas "belated," we note that Family Court is obliged to consider the conduct and commitment of theparent during the interim between the end of the one-year period and the commencement of thisproceeding (see Matter of Star Leslie W., 63 NY2d at 147). Based upon our review of therecord of the father's accomplishments following his separation from the mother, including theuncontested bond he had formed with the child, we conclude that petitioner failed to establish, by clearand convincing evidence, that the father permanently neglected the child within the meaning of SocialServices Law § 384-b (7) (a) (see Matter of Sean F., 155 AD2d 775, 776-777[1989]; cf. Matter of Nicole H.,24 AD3d 1054, 1055-1056 [2005]; Matter of Raena TT., 7 AD3d 936, 938 [2004]).
Cardona, P.J., Lahtinen, Malone Jr. and McCarthy, JJ., concur. Ordered that the order ismodified, on the facts, without costs, by reversing so much thereof as granted the petition againstrespondent Claude U.; petition dismissed as to said respondent; and, as so modified, affirmed.