| Matter of Ja'Heem W. (Beronica W.) |
| 2011 NY Slip Op 00121 [80 AD3d 917] |
| January 13, 2011 |
| Appellate Division, Third Department |
| In the Matter of Ja'Heem W., a Child Alleged to be a PermanentlyNeglected. Columbia County Department of Social Services, Respondent; Beronica W.,Appellant. |
—[*1] Megan Mercy, Columbia County Department of Social Services, Hudson (James A. Carlucci,Hudson, of counsel), for respondent. Geri Pomerantz, East Greenbush, Attorney for the Child.
Malone Jr., J. Appeal from an order of the Family Court of Columbia County (Nichols, J.),entered November 18, 2009, which granted petitioner's application, in a proceeding pursuant toSocial Services Law § 384-b, to adjudicate respondent's child to be permanently neglected,and terminated respondent's parental rights.
Respondent is the mother of the subject child, who was removed from her care the day afterhis birth in February 2008. In May 2009, after the child had been in petitioner's custody for morethan one year, petitioner commenced this proceeding seeking to terminate respondent's parentalrights based upon her failure to plan for the child's future, despite petitioner's efforts to reuniteher with her child. Following a hearing, Family Court granted the petition, adjudicated the childto be permanently neglected and terminated respondent's parental rights. Respondent appeals.[*2]
In seeking to terminate respondent's parental rights to herchild, petitioner bore the burden of establishing that it had made diligent efforts to strengthen theparent-child relationship and that, as relevant here, despite such efforts, respondent failed tosubstantially plan for her child's future for a period of one year (see Social Services Law§ 384-b [7] [a]). The record establishes that petitioner's caseworkers met with respondenton numerous occasions and created a service plan for her that included appropriate mental healthand drug treatment programs, classes in parenting and anger management and arrangements forsupervised visitation with the child. Petitioner also advised respondent of the child's progress andprovided respondent with financial support, including budgeting assistance, transportationvouchers, food subsidies and cell phones with prepaid minutes. Notably, petitioner's caseworkersrepeatedly informed respondent that her successful participation in a drug treatment program wasessential if she was to regain custody of the child. Contrary to respondent's contentions, therecord supports Family Court's determination that petitioner made diligent efforts to assistrespondent in resolving the problems that prevented the return of the child to her care(see Social Services Law § 384-b [7] [a]; Matter of Tatianna K. [ClaudeU.], 79 AD3d 1184, 1185 [2010]).
The record also contains clear and convincing evidence that, despite petitioner's efforts,respondent failed to plan for the child's future. Although she was aware that the successfulcompletion of a drug treatment program was necessary to regain custody of her child, respondentconsistently maintained that she did not require such treatment—although she admitted tousing marihuana, which she does not consider to be a drug—and did not attend scheduledcounseling sessions. Consequently, she was unsuccessfully discharged from theprogram.[FN1]Similarly, respondent only sporadically attended sessions for the other programs recommendedby petitioner and failed to attend the child's service plan review, although petitioner notified herby mail and her caseworker twice reminded her in person. She also refused to submit to drugscreening prior to visitation sessions and, as a result, had no visitation with the child afterOctober 2008, despite her caseworkers' encouragement to comply with the screening. Finally,according to one of her caseworkers, respondent's apartment is an inappropriate residence for thechild as several people live there and they possess marihuana and drug paraphernalia, which wasleft out in the open, and the apartment was unclean and lacking food. Although respondent hasexpressed a desire to regain custody of her child, respondent's failure to acknowledge thecircumstances that led to his removal from her care and her consistent refusal to participate in theservices recommended by petitioner supports Family Court's finding that respondent failed toplan for the future of her child (see Social Services Law § 384-b [7] [c]; Matterof Karina U., 299 AD2d 772, 773 [2002], lv denied 100 NY2d 501 [2003]).
Finally, Family Court did not abuse its discretion by ordering the termination of respondent'sparental rights and freeing the child for adoption, rather than entering a suspended judgment. Infashioning a disposition, the overriding consideration is the best interests of the child and, asFamily Court found, the prospects for respondent's compliance with the recommended treatmentand ultimate recovery are not promising, particularly considering that, at the hearing, shecontinued to deny the need for drug treatment services. On the other hand, the child has beencared for by the same foster care family since his birth and they were willing to [*3]adopt the child.[FN2]Viewing the totality of the evidence, and " 'according deference to Family Court's determinationgiven its opportunity to assess the demeanor and credibility of the witnesses, we cannot say thatthe court abused its discretion in terminating [respondent's] parental rights rather than granting asuspended judgment' " (Matter of SierraC. [Deborah D.], 74 AD3d 1445, 1448 [2010], quoting Matter of Nevaeh SS. [Valerie L.], 68AD3d 1188, 1190 [2009]).
Respondent's challenge to the requirement that she submit to a drug screening test prior tovisitation with her child is not properly before this Court as that requirement was contained in apermanency order entered in January 2009 and respondent did not appeal from that order.
Cardona, P.J., Mercure, Stein and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Respondent was alsounsuccessfully discharged from Family Treatment Court.
Footnote 2: Respondent did not seek a stayof the order terminating her parental rights and the foster family filed an adoption petition onNovember 18, 2009—one week before respondent filed her notice of appeal from FamilyCourt's order. The adoption was finalized and a certificate of adoption was issued in May 2010;respondent's appeal was not perfected until two months later.