| Matter of Telsa Z. (Denise Z.) |
| 2011 NY Slip Op 04130 [84 AD3d 1599] |
| May 19, 2011 |
| Appellate Division, Third Department |
| In the Matter of Telsa Z., and Another, Children Alleged to beAbused and Neglected. Clinton County Department of Social Services, Respondent; Denise Z.,Appellant. (And Another Related Proceeding.) |
—[*1] Michael J. Hartnett, Clinton County Department of Social Services, Plattsburgh, forrespondent. Cheryl Maxwell, Plattsburgh, attorney for the children.
Spain, J.P. Appeals (1) from an order of the Family Court of Clinton County (McGill, J.),entered August 17, 2010, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 10, to adjudicate respondent's children to be neglected, and (2) from twoorders of said court, entered August 24, 2010, which granted petitioner's application, in aproceeding pursuant to Family Ct Act article 10-A, to extend the placement of respondent'schildren.
Respondent (hereinafter the mother) and her husband, Rickey Z. (hereinafter the father), hadtwo daughters, born in 2000 and 2001. In October 2008, petitioner commenced a neglectproceeding against the father alleging that he had sexually abused the older child, then eight yearsold, and derivatively neglected the younger child. This Court affirmed Family Court's [*2]determination, after a fact-finding hearing, sustaining theallegations and the court's dispositional order precluding all contact with them (Matter of Telsa Z. [RickeyZ.—Denise Z.], 71 AD3d 1246 [2010]).[FN1]The father surrendered his parental rights as to both girls in June 2010. While the girls initiallyremained with the mother, they were placed together in therapeutic foster care in January 2009,after the older child disclosed that her mother had witnessed some of the abuse and threatenedher if she told anyone.
A neglect petition was filed against the mother in March 2010 alleging that she failed toprotect the older child from the father's sexual abuse despite her awareness of it, and hadderivately neglected the younger child. After a fact-finding hearing, Family Court sustained theallegations, and this Court affirmed (Matter of Telsa Z. [Denise Z.], 81 AD3d 1130 [2011]). Following a combined permanency and dispositional hearing inJuly 2010, Family Court issued orders continuing the girls' placement with petitioner with apermanency goal of reunification with the mother and denying her request for visitation. Themother now appeals from the dispositional and permanency orders[FN2]as to both girls.
Initially, the mother did not preserve for our review the claim, raised for the first time onappeal, that holding the dispositional and permanency hearings at the same time operated todeprive her of due process (see Family Ct Act § 1118; CPLR 5501 [a] [3];Matter of Gordon L. v Michelle M., 296 AD2d 628, 630 [2002]). In any event, the recorddemonstrates that she was afforded "a full and fair opportunity to be heard, the full measure ofany due process owed" (Matter of Gordon L. v Michelle M., 296 AD2d at 630 [internalquotation marks and citation omitted]). Having issued an order sustaining the abuse and neglectallegations in the petition against the mother (see Family Ct Act § 1051 [a]),Family Court properly proceeded, on notice, to the dispositional hearing (see Family CtAct § 1047), at which the mother fully participated, represented by counsel; she wasafforded every opportunity to cross-examine witnesses, to present evidence and to be heard onthe issue of what disposition, including visitation, would be in the girls' best interests (seeFamily Ct Act §§ 1045, 1052). We discern no error or prejudice to the mother in thecourt's simultaneous, noticed consideration of the mandatory permanency hearing (seeFamily Ct Act § 1089). The "material and relevant" evidentiary standard governed bothhearings (Family Ct Act § 1046 [c]; see Family Ct Act § 1089 [d]), at whichthe best interests and safety of the children are the paramount consideration (see FamilyCt Act § 1089 [d]; §§ 1052, 1055; Matter of Victoria X., 34 AD3d 1117, 1118 [2006], lvdenied 8 NY3d 806 [2007]).[*3]
On the merits, Family Court's determination to continueplacement of the girls with petitioner and deny the mother visitation is supported byoverwhelming record evidence that this placement is consistent with their best interests (see Matter of Brandon DD. [JessicaEE.], 75 AD3d 815, 816-817 [2010]; Matter of Victoria X., 34 AD3d at 1118).Notably, the evidence at the mother's fact-finding hearing established that the father hadrepeatedly sexually abused the older child, and that "the mother was aware of it, witnessed it andinstructed the child not to tell anyone" (81 AD3d at 1133). The evidence at the dispositionalhearing established that the mother underwent a psychological evaluation in early 2009, severalmonths after her daughters were removed, at which extensive services and therapy wererecommended and thereafter repeatedly made available to her.
The psychological evaluations (in 2009 and 2010) and documentary evidence, including thepermanency hearing reports, combined with the testimony of the mother's mental health clinician,the caseworkers assigned to the mother and the social worker assigned to the older child, fullysupport Family Court's dispositional conclusion that she "has failed to avail herself of [therecommended] services" and "has not inquired about her children or their progress." Indeed, therecord supports the permanency hearing report conclusion that the mother had made "noprogress" in addressing the many problems necessitating their removal. She failed to attendrecommended psychotherapy or mental health counseling beyond the initial intake interview,refused to attend a sex offender assessment[FN3]and other services, and rejected advice to retake parenting classes and a therapy and educationalprogram for non-offending parents of sexually abused children.
As recently as the month prior to the dispositional hearing, the mother continued to doubtwhether the older child had been sexually abused by the father, with whom the mother had stayedand helped in recent weeks. While she minimized her ongoing relationship with the father andclaimed that he needed her help due to his medical condition, it is clear that she has not severedher contacts with and dependence on him and fails to genuinely comprehend the harm he causedor her role in it. Further, she is unemployed, living on Social Security disability benefits andstaying in a house with no electricity or running water, which she conceded was unsafe forchildren (and where the father had been living just weeks earlier before apparently returning to arehabilitation facility).
The testimony also establishes that the older child remains a "child in crisis," unstable, withsignificant behavioral and psychiatric problems requiring repeated hospitalizations, in the monthsprior to the hearing, for extreme and unsafe behavior and suicidal ideations connected to fears ofher father. She resides away from her sister in a residential therapeutic setting where she receivesnumerous medications and therapy, and she is assigned a personal aide; she is not yet [*4]able to address her sexual abuse due to her emotional instability.Her social worker and treatment team advised against any plan to reintroduce the mother into herlife, believing visitation would be affirmatively harmful, as the mother had minimal contact withthe child's therapist and service providers in the prior year and a half and had no contact with thegirls since mid 2009. The evidence and her own testimony support the conclusion that the motherhas no real understanding of the child's emotional trauma and needs, and that any contact couldworsen her condition.
By all accounts, the younger child is making progress in a stable foster care family in ClintonCounty and moving toward being placed in mainstream grade-level classes. She continues withtherapy to address improved but ongoing behavioral problems and her tendency to be withdrawnand anxious. The girls have regular supervised visitation with one another at the institution wherethe older child resides, and phone contact, which all providers highly recommended be continueddespite the lengthy trip required of the younger child. While their visits are at times unsuccessfulbecause the older child mistreats her younger sister, repeating a family pattern in which theyounger child was openly disfavored, the consensus is that this relationship with face-to-facecontact is important to the welfare of both girls. However, the girls' counselors opposed resumingvisits between the mother and the younger child since it could negatively affect the siblingrelationship. Moreover, the mother has never called the younger child's teachers, counselors orthe social worker to discuss how she is doing.
In light of the mother's failure to attend or successfully complete programs and servicesaddressing her own mental health problems and parenting deficiencies and her failure to makeany progress or to gain insight into the abuse suffered by the older child, the determination tocontinue the girls' placement with petitioner has a sound and substantial basis in the record (see Matter of Elijah Q., 36 AD3d974, 976 [2007], lv denied 8 NY3d 809 [2007]). Their "physical, mental andemotional well-being" and "best interests" clearly preclude their return to the mother at thatjuncture under any conceivable circumstances (Matter of Brandon DD. [Jessica EE.], 75AD3d at 816; see Family Ct Act § 1089 [d]).
Further, "based on compelling reasons and substantial evidence that such visitation would bedetrimental or harmful to the [girls'] welfare" (Matter of Victoria X., 34 AD3d at 1118[internal quotation marks omitted]), visitation was properly denied. Under the extremecircumstances presented, including the mother's ongoing contact with the older child's abuser anddenial or minimization of his abuse or her role in it, her failure to make any effort for anextended period of time to educate herself as to the girls' well-being, needs and progress, thedanger to the still-precarious but improving sibling relationship, and the mother's refusal toaddress the multiple serious underlying problems causing their removal, denial of all visitationwas a provident exercise of discretion (see Matter of Sullivan County Dept. of Social Servs. vRichard C., 260 AD2d 680, 682 [1999], lv dismissed 93 NY2d 958 [1999]).
Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the orders areaffirmed, without costs.
Footnote 1: We also affirmed findings thathe willfully violated orders of protection in favor of the girls (Matter of Telsa Z. [Rickey Z.], 75 AD3d 776 [2010) and an ordercontinuing their placement with petitioner and prohibiting contact with them (Matter of Telsa Z. [Rickey Z.], 74AD3d 1434 [2010]).
Footnote 2: We have been advised that anew permanency order was issued as to the older child on February 24, 2011, rendering moot theappeal from the August 2010 permanency order as to her (see Matter of Lauren L. [Cassi M.], 79 AD3d 1172 [2010]).However, since the mother has also raised a due process challenge to that order, we will addressit on the merits.
Footnote 3: In 1994 in Saratoga County,long before these daughters were born, the mother admitted neglect of two other daughters fromprevious relationships after allowing her then-boyfriend access to the girls despite knowledgethat he had sexually abused one of them, and she subsequently willfully violated court orders byleaving those girls with another abuser. They were removed, and the mother later surrendered herparental rights to them and admitted neglect of a third child who was placed in foster care(see 81 AD3d at 1133).