| Matter of James U. (James OO.) |
| 2010 NY Slip Op 08823 [79 AD3d 1191] |
| December 2, 2010 |
| Appellate Division, Third Department |
| In the Matter of James U., a Child Alleged to be Permanently Neglected.Tompkins County Department of Social Services, Respondent; James OO., Appellant. (ProceedingNo. 1.) In the Matter of James U., a Child Alleged to be Permanently Neglected. Tompkins CountyDepartment of Social Services, Respondent; Michelle OO., Appellant. (Proceeding No.2.) |
—[*1] Francisco P. Berry, Ithaca, for Michelle OO., appellant. Andrew J. Mooney, Tompkins County Department of Social Services, Ithaca, for respondent. Natalie B. Miner, Homer, attorney for the child.
Rose, J. Appeals from two orders of the Family Court of Tompkins County (Rowley, J.), enteredDecember 18, 2009, which granted petitioner's applications, in two proceedings pursuant to SocialServices Law § 384-b, to adjudicate James U. to be a permanently neglected child, andterminated respondents' parental rights.
The parental rights of respondent James OO. (hereinafter the father) and respondent Michelle OO.(hereinafter the mother) to two of their other children (and to the mother's child with another person)were previously terminated in orders affirmed by this Court (Matter of Vivian OO., 34 AD3d 1111 [2006], lv denied 8NY3d 808 [2007]; Matter of VivianOO., 33 AD3d 1096 [2006]; Matter of Brandon OO., 304 AD2d 873 [2003];Matter of Brandon OO., 302 AD2d 807 [2003]). In addition, respondents have voluntarilysurrendered their parental rights to their youngest child, born in 2009. We have also affirmed an orderfinding that they derivatively neglected James U. (hereinafter the child), born in 2002, based on thefather's sexual abuse of the child's two-year-old sister (Matter of Vivian OO., 44 AD3d 1104, 1105 [2007]). Thereafter, Jamesresided with the mother under petitioner's supervision until he was placed in foster care upon a findingthat the father had unsupervised contact with the child. We then affirmed an order extending petitioner'ssupervision of the mother (Matter of JamesU., 55 AD3d 972 [2008]). After Family Court granted petitioner's motion to be released fromreasonable efforts to return the child to his home, the court determined that the child was permanentlyneglected and, following a dispositional hearing at which a paternal aunt and her husband soughtcustody, terminated respondents' parental rights and freed the child for adoption. Respondents appealand we affirm.
Initially, we reject the mother's challenge to the order excusing petitioner from making reasonableefforts at reunification. As her parental rights to the child's siblings had been involuntarily terminated,Family Court was free to excuse the reasonable efforts requirement unless it determined that providingsuch efforts would be in the best interests of the child, not contrary to the health and safety of the childand likely to result in reunification in the foreseeable future (see Family Ct Act § 1039-b[b] [6]). Given the mother's unwillingness to acknowledge the risk posed by the father or protect thechild from unsupervised contact with him, we discern no basis for disturbing Family Court's order (see Matter of Carlos R., 63 AD3d1243, 1244-1245 [2009], lv denied 13 NY3d 704 [2009]; see also Matter of VivianOO., 34 AD3d at 1113-1114).
Nor is there merit to respondents' claims that petitioner failed to establish permanent neglect andthat termination of parental rights and freeing the child for adoption were not in the child's best interests.Here, the relevant issue for determining permanent neglect was whether respondents planned for thefuture of the child, which required utilization of available services and the provision of a stable andadequate home environment (see Matter of Gregory B., 74 NY2d 77, 87 [1989]; Matterof Star Leslie W., 63 NY2d 136, 142-143 [1984]). "At a minimum, parents must take steps tocorrect the conditions that led to the removal of the child" (Matter of Nathaniel T., 67 NY2d838, 840 [1986] [internal quotation marks omitted]; see Matter of Alaina E., 59 AD3d 882, 885 [2009], lv denied12 NY3d 710 [2009]).
Evidence at the fact-finding hearing revealed that the mother continues to suffer from [*2]periodic mental instability due to her alcohol consumption and her failureto stay on her medication. Although she was in therapy and regularly participated in supervisedvisitation with the child, she had no realistic plan to provide a stable home in which the child would beprotected from the father. Not only did the mother acknowledge repeated violations of the orderprecluding the father from having unsupervised visitation with the child, but she resumed living with thefather after the child was removed and refused any further services from petitioner. For his part, thefather had not completed sex offender treatment, despite having been engaged in it since 1999.Although respondents did participate in the services offered to them, the evidence demonstrated thatthey failed to meaningfully benefit from those services. Moreover, their failure to express any insight intothe circumstances that caused the removal supports the conclusion that they failed to substantially planfor the child's future (see Matter of Sierra C.[Deborah D.], 74 AD3d 1445, 1447 [2010]; Matter of Mary MM. [Leuetta NN.], 72 AD3d 1427, 1429 [2010],lv denied 15 NY3d 703 [2010]; Matter of Audrey I., 57 AD3d 1172, 1174 [2008], lv denied 12NY3d 704 [2009]).
We also conclude that the order terminating parental rights and freeing the child for adoption has asound basis in the record (see Matter of Star Leslie W., 63 NY2d at 148; Matter of Nevaeh SS. [Valerie L.], 68AD3d 1188, 1189-1190 [2009]; Matterof Angelica VV., 53 AD3d 732, 733 [2008]). The evidence at the dispositional hearingestablished that the child has a long-standing, stable relationship with the foster parent, who isaddressing the needs of the child and is willing to adopt him. The alternative offered by respondents,that the child return to the mother who would then remain separate from the father, is unrealistic andunavailing given the mother's inability to acknowledge the danger posed by the father or protect thechild from him. Finally, respondents' appeal of Family Court's denial of the petition of the paternal auntand her husband is not properly before us (see Matter of Carol YY. v James OO., 68 AD3d 1463 [2009];Matter of Angelica VV., 53 AD3d at 733).
Mercure, J.P., Peters, Malone Jr. and Egan Jr., JJ., concur. Ordered that the orders are affirmed,without costs.