| Matter of Sharon V. v Melanie T. |
| 2011 NY Slip Op 04793 [85 AD3d 1353] |
| June 9, 2011 |
| Appellate Division, Third Department |
| In the Matter of Sharon V., Appellant, v Melanie T.,Respondent. (Proceeding No. 1.) In the Matter of Roberto Y., a Child Alleged to be PermanentlyNeglected. Chemung County Department of Social Services, Respondent; Melanie T., Appellant.(Proceeding No. 2.) |
—[*1] Abbie Goldbas, Utica, for Melanie T., appellant in proceeding No. 2 and respondent inproceeding No. 1. David A. Kagle, Chemung County Department of Law, Family Court Division, Elmira, forChemung County Department of Social Services, respondent. Francisco P. Berry, Ithaca, attorney for the child.
Rose, J. Appeals from an order of the Family Court of Chemung County (Brockway, J.),entered October 5, 2010, which (1) dismissed petitioner's application, in proceeding No. 1pursuant to Family Ct Act article 6, for custody of her grandchild, and (2) granted petitioner'sapplication, in proceeding No. 2 pursuant to Social Services Law § 384-b, to adjudicate thesubject child to be permanently neglected, and terminated respondent's parental rights.
Petitioner Chemung County Department of Social Services (hereinafter DSS) removedRoberto Y. (born in 2003) from the home of respondent (hereinafter the mother) immediatelyafter the child witnessed the accidental death of his seven-month-old brother. Although thechildren had been in the care of the maternal grandmother, petitioner Sharon V., she voluntarilyreturned them to the mother just before the accident. The children were then left unattendedwhile the mother slept, and the younger brother died as a result of asphyxiation and burns after heclimbed into an open oven and it fell on top of him. Both children's bodies were encrusted withfeces and the apartment was unsafe and unsanitary. The mother, whose parental rights to twoother children had previously been terminated due to domestic violence and substance abuse,consented to a finding of neglect with respect to Roberto. Over 2½ years later, thegrandmother filed a petition for custody of Roberto (proceeding No. 1) and DSS commenced apermanent neglect proceeding (proceeding No. 2). Family Court then determined that the childwas permanently neglected, terminated the mother's parental rights and denied the grandmother'spetition for custody. Although the grandmother also informally sought visitation with the child,the court instead permitted contact to the extent that the foster parents, who had expressed adesire to adopt this special needs child, agreed. The mother and grandmother appeal, and we nowaffirm.
The mother initially contends that DSS failed to engage in diligent efforts to encourage andstrengthen the parent-child relationship (see Social Services Law § 384-b [7] [a],[f]; Matter of Gregory B., 74 NY2d 77, 86 [1989]; Matter of Laelani B., 59 AD3d 880, 881 [2009]; Matter of Isaiah F., 55 AD3d1004, 1005 [2008]). While she concedes that services were provided, she argues that DSSfailed to appropriately tailor them to address her specific needs. Our review of the record,however, reveals that, although an appropriate service plan was offered, the mother'sparticipation was marked by inconsistency, delay and noncompliance. While she eventuallycompleted a number of the offered services, including parenting classes, a drug and alcoholassessment, a domestic abuse program and a protective parenting program, she failed todemonstrate a consistent ability to understand or apply the relevant information and skills.
Specifically, the mother was offered appropriate counseling and, although she completedsome of it, she was resistant to any further grief counseling regarding the death of the youngerchild and failed to acknowledge any role in that tragedy. As for the mother's claim that sheshould have had assistance in obtaining housing, no such assistance could remedy the safetyproblem preventing the return of the child. Despite repeated advice from DSS to end herrelationship with a felon who had a history of domestic violence and drug use, and who had beenordered to have no contact with the child, she continued the relationship and eventually marriedhim, thus making her home unsafe for the child's return. With respect to visitation, DSS assistedthe mother by scheduling twice-weekly sessions and providing transportation, but herparticipation remained inconsistent and she failed to take advantage of the mandatory processingappointments designed to assist her with essential feedback. In short, the mother showed little"initiative and responsibility for making [the service] plan work" (Matter of Daniel AA.,241 AD2d 703, 704 [1997]), and DSS "was not obligated to accommodate [her] lack of insightby formulating an alternative plan" (Matter of Alycia P., 24 AD3d 1119, 1121 [2005]).[*2]
Diligent efforts having been established, DSS is requiredto demonstrate that the parent has, as relevant here, failed to substantially plan for the child'sfuture by taking the steps necessary to provide a stable and adequate home environment(see Social Services Law § 384-b [7] [a]; Matter of Gregory B., 74 NY2dat 87; Matter of Star Leslie W., 63 NY2d 136, 142-143 [1984]). As we have noted, themother failed to acknowledge any responsibility in the death of the younger child, she continuedher relationship with her now-husband despite the barrier it raised to the return of the child, andshe failed to fully engage or benefit from the services offered. Accordingly, there is amplesupport for Family Court's thorough and well-reasoned decision finding permanent neglect (see Matter of Juliette JJ. [Parris JJ.], 81AD3d 1112, 1114 [2011]; Matter ofJames U. [James OO.], 79 AD3d 1191, 1193 [2010]; Matter of Sierra C. [Deborah D.], 74AD3d 1445, 1447 [2010]).
At the dispositional phase of the permanent neglect proceeding, the grandmother's custodypetition was also heard. At that stage, the sole basis of inquiry was the best interests of the child,with no presumption that any particular disposition would promote those interests (seeFamily Ct Act § 631; Matter ofCarolyn S. v Tompkins County Dept. of Social Servs., 80 AD3d 1087, 1089 [2011]; Matter of Deborah F. v Matika G., 50AD3d 1213, 1214-1215 [2008]). Where, as here, a blood relative seeks custody of the child,that person "does not take precedence over a prospective adoptive parent selected by theauthorized agency" (Matter of Deborah F. v Matika G., 50 AD3d at 1215). Rather, therelative fitness of the mother, the grandmother and the foster parents are considered and,although the mother claims that a suspended judgment would have been appropriate, we find nobasis to disturb Family Court's conclusion that termination of her parental rights was in thechild's best interests (see Matter of Nathaniel T., 67 NY2d 838, 840 [1986]; Matter of Kayla KK. [Tracy LL.], 68AD3d 1207, 1209 [2009], lv denied 14 NY3d 707 [2010]; Matter of Melissa DD., 45 AD3d1219, 1221 [2007], lv denied 10 NY3d 701 [2008]).
Although the grandmother had ongoing, appropriate contact with the child throughout hislife, the child was bonded with his foster parents, having been in their care for over 2½years before the grandmother filed her petition. The foster parents were willing to adopt thechild, and his own therapist testified that he needed the continued stability that only they couldprovide to deal with his special needs and the trauma he had experienced in witnessing hisbrother's death. Giving due deference to Family Court's ability to assess the credibility of thewitnesses, and finding a sound and substantial basis in the record to support its findings, we willnot disturb the denial of the grandmother's petition for custody (see Matter of Deborah F. vMatika G., 50 AD3d at 1215; Matter of Donald W., 17 AD3d 728, 730 [2005], lv denied5 NY3d 705 [2005]).
Finally, we reject the grandmother's contention that Family Court improperly delegated itsauthority to the child's therapist to determine her posttermination visitation. The grandmother didnot petition for visitation, nor was it awarded. Family Court merely conditioned DSS's custodyon, among other things, continued contact with the grandmother, as agreed upon by the parties,"in likely consultation with [the child's] therapists." Family Court has the authority, pursuant toFamily Ct Act § 634, to commit the child to DSS's custody on such conditions as it deemsproper. Given Family Court's denial of custody and the grandmother's failure to formally requestvisitation, we find no basis to conclude that the court delegated its authority regarding visitationor otherwise imposed an improper condition on the disposition.
Peters, J.P., Malone Jr., Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.