| Matter of Nazelle RR. (Lisa RR.) |
| 2011 NY Slip Op 04569 [85 AD3d 1253] |
| June 2, 2011 |
| Appellate Division, Third Department |
| In the Matter of Nazelle RR. and Others, Children Alleged to bePermanently Neglected. Tompkins County Department of Social Services, Respondent; Lisa RR.,Appellant. |
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Malone Jr., J. Appeal from an order of the Family Court of Tompkins County (Sherman, J.),entered August 17, 2010, which granted petitioner's application, in a proceeding pursuant toSocial Services Law § 384-b, to adjudicate respondent's children to be permanentlyneglected, and terminated respondent's parental rights.
In July 2008, respondent's four children (born in 1998, 2002, 2005 and 2006) were removedfrom her care after petitioner received a report of domestic violence between respondent and herboyfriend, who is the father of two of her children (those born in 2002 and 2006), and a reportthat the two youngest children were outside the house and wandering in the street. Respondentthereafter consented to a finding of neglect and was placed under petitioner's supervision. Thechildren remained in foster care for nearly 18 months, prompting petitioner to commence thispermanent neglect proceeding, seeking to terminate petitioner's parental rights. [*2]Following fact-finding hearings and a dispositional hearing, FamilyCourt granted the petition. Respondent appeals.
As is relevant here, to establish permanent neglect, petitioner was required to prove, by clearand convincing evidence, that, despite its diligent efforts to strengthen the parent-childrelationship, respondent failed to plan for her children's future for a period of one year after thechildren were placed into petitioner's custody (see Social Services Law § 384-b [4][d]; [7] [a]; Matter of Tyler LL. [Deborah KK.], 84 AD3d 1465, 1465 [2011]). Althoughrespondent argues that petitioner failed to make such diligent efforts, the record reflects thatpetitioner provided respondent with caseworker counseling, as well as referrals to appropriatetherapy and other programs to address the problems that led to the children's removal fromrespondent's care. Petitioner also provided respondent with regular visitation with the children,held family team meetings to discuss the family's service plan and offered her assistance withtransportation. Petitioner maintained consistent contact with respondent and appropriatelyinformed her of the children's progress in school and of any appointments that they had.Considering the multitude of services offered to respondent, Family Court's finding thatpetitioner made the requisite diligent efforts is supported by the record (see Matter of TylerLL. [Deborah KK.], 84 AD3d at 1466; Matter of Ja'Heem W. [Beronica W.], 80AD3d 917, 917-918 [2011]).
The record also supports a finding that petitioner established, by clear and convincingevidence, that respondent failed to substantially plan for the future of the children (seeSocial Services Law § 384-b [7] [c]). The children were removed from respondent's caredue to documented instances of respondent's inadequate supervision of the children, as well asincidents of domestic violence between respondent and her boyfriend. Yet respondentconsistently maintained that petitioner removed the children from her care without cause, deniedthat there was domestic violence in the household and either failed or refused to acknowledgethat the parentification of her 10 year old was not appropriate. Further, despite claiming that shehad ended her relationship with her boyfriend, respondent continued to have contact with himand relied on him for support in maintaining her apartment.
The record also reflects that additional barriers to the reunification of the family existed,which respondent likewise failed to address—namely, respondent's significant medical andmental health issues, which contributed to her difficulty in properly parenting the children andmaintaining a safe and clean home for them. Although respondent did complete certain programsrecommended by petitioner, she consistently denied that her ability to care for the children wasimpaired by her mental or physical health. She was discharged from individual mental healththerapy due to excessive absenteeism and agreed with the opinion of her therapist that she hadgained little or no benefit from therapy. Excessive absenteeism was also the cause of respondent'sdischarge from a wound care clinic, where she had received treatment for methicillin-resistentStaphylococcus aureus. Despite being advised of methods to prevent the spread of the disease,respondent failed to take appropriate precautions in maintaining a clean apartment and duringcontact with the children, resulting in its transmission to two of the children. Althoughrespondent contends that her shortcomings are somehow the fault of petitioner, the evidencedemonstrates that respondent failed to fully participate in or benefit from the recommendedservices and failed to fully acknowledge or take responsibility for the conditions and actions thatled to the removal of the children from her care. Accordingly, Family Court's finding thatpetitioner failed to substantially plan for the future of the children is supported by the record(see Matter of Ja'Heem W. [Beronica W.], 80 AD3d at 918; Matter of [*3]George M., 48 AD3d 926, 927-928 [2008]).
Finally, we find no abuse of discretion in Family Court's determination to terminaterespondent's parental rights rather than issue a suspended judgment. In rendering a disposition,the overriding concern is the best interests of the children. In this case, Family Court found that,in the two years the children were in foster care, there was no substantial improvement in theissues which led to their removal from respondent's care and there was no reasonable hope thatrespondent would be in a position to resume custody of them in the foreseeable future. Thechildren had been with the same foster mother for the entire time of their placement, were allthriving and the foster mother intended to adopt them. According deference to Family Court'sfactual findings and assessments of witness credibility, we find no basis upon which to disturb itsdetermination that termination of respondent's parental rights was in the children's best interests(see Matter of Tyler LL. [Deborah KK.], 84 AD3d at 1467; Matter of Nicholas R.[Jason S.], 82 AD3d 1526, 1528-1529 [2011]).
Peters, J.P., Rose, Lahtinen and Garry, JJ., concur. Ordered that the order is affirmed,without costs.