| Matter of Destiny EE. (Karen FF.) |
| 2011 NY Slip Op 01543 [82 AD3d 1292] |
| March 3, 2011 |
| Appellate Division, Third Department |
| In the Matter of Destiny EE., a Neglected Child. Ulster CountyDepartment of Social Services, Respondent, et al., Respondents; Karen FF., Appellant.(Proceeding No. 1.) In the Matter of Nigal FF., a Neglected Child. Ulster County Department ofSocial Services, Respondent, et al., Respondents; Karen FF., Appellant. (Proceeding No. 2.) Inthe Matter of Brandon EE., a Neglected Child. Ulster County Department of Social Services,Respondent, et al., Respondents; Karen FF., Appellant. (Proceeding No.3.) |
—[*1] Heather D. Harp, Ulster County Department of Social Services, Kingston, for respondent. Marion B. Cocose, Bearsville, attorney for the children. Daniel Gartenstein, Kingston, attorney for the child.
Rose, J. Appeals from three orders of the Family Court of Ulster County (Mizel, J.), enteredFebruary 23, 2010, which granted petitioner's applications, in three proceedings pursuant toFamily Ct Act article 10-A, to, among other things, extend the placement of respondent'schildren.
Family Court determined that two of respondent's children, Brandon EE. (born in 1997) andNigal FF. (born in 2000), were neglected based on findings that her then-husband, the father ofNigal, had sexually abused Brandon in 2001. Despite respondent's knowledge of these findings,she later sent Nigal to spend the summer with his father in Mississippi. When the father wouldnot return Nigal, respondent turned to Family Court for assistance. After Nigal's return, petitionersought, and respondent consented, to an order adjudicating Brandon, Nigal and Destiny EE.(born in 2003) to be neglected and placing them in the custody of petitioner. After a permanencyhearing, Family Court determined that it was in the children's best interests to remain in fostercare and changed the permanency goal from "return to parent" to "placement for adoption."Respondent appeals, contending that petitioner failed to meet its burden of justifying eithercontinued placement or a change in the permanency goal.
In seeking an extension of placement, petitioner must demonstrate, by a preponderance ofevidence, that respondent is presently unable to care for the children, and that continuedplacement is in their best interests (seeMatter of Brandon DD. [Jessica EE.], 75 AD3d 815, 816 [2010]; Matter of Natasha RR., 42 AD3d762, 763 [2007], lv dismissed 9 NY3d 956 [2007]). The evidence at the hearingrevealed that respondent made no meaningful progress in addressing the issues related to hermental health, housing and employment. Specifically, respondent had a number of unexcusedabsences from therapy, stopped attending group therapy altogether, stopped utilizing a programdesigned to help her find employment, continued to live in a studio apartment unsuitable forovernight visitation and, instead of finding a job, was "volunteering" at her friend's grocery,which consisted mainly of hanging out there with her friends. There was also evidence thatrespondent did not appropriately manage her children's behavior or address their issues [*2]during supervised visitation, and that she had expressed the beliefthat the father had not sexually abused Brandon.
In sum, the evidence demonstrated that respondent failed to make progress " 'to overcome thespecific problems which led to the removal of [her] child[ren]' " in the first instance (Matter of Kasja YY. [Karin B.], 69AD3d 1258, 1259 [2010], lv denied 14 NY3d 711 [2010], quoting Matter ofJonathan P., 283 AD2d 675, 676 [2001], lv denied 96 NY2d 717 [2001]). Asrespondent failed to gain any awareness of the children's needs or the reasons the children wereplaced in foster care, and failed to comply with the services offered her over the nearly 18months that the children were in petitioner's care, there is a sound and substantial basis in therecord for the determination to extend placement (see Matter of Brandon DD. [JessicaEE.], 75 AD3d at 816-817; Matter of William G., 233 AD2d 702, 703-704 [1996]).
With respect to the permanency goal, although the "overarching consideration" is always toreturn the child to the parent (Matter of Dale P., 84 NY2d 72, 77 [1994]), when suchreunification is not possible because of a parent's unwillingness or inability to correct theconditions that led to the removal of the children from the home, the goal then shifts to finding apermanent, stable solution as soon as possible because it is not in the children's best interests tocontinue in foster care on an indefinite or long-term basis (see Matter of Michael B., 80NY2d 299, 310 [1992]). Family Court has the authority to modify an existing permanency goal(see Family Ct Act § 1089 [d] [2] [i]), and respondent's failure to comply with andtake advantage of the services offered to her provides a sound and substantial basis upon whichto do so here (see Matter of Lindsey BB.[Ruth BB.], 72 AD3d 1162, 1164 [2010]; Matter of Rebecca KK., 55 AD3d 984, 986 [2008]).
We have considered respondent's remaining contentions and, to the extent that they havebeen preserved, they are without merit.
Peters, J.P., Spain, Kavanagh and Egan Jr., JJ., concur. Ordered that the orders are affirmed,without costs.