| Matter of Syles DD. (Felicia DD.) |
| 2012 NY Slip Op 00146 [91 AD3d 1054] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Syles DD., a Child Alleged to be PermanentlyNeglected. Schenectady County Department of Social Services, Respondent; Felicia DD.,Appellant. |
—[*1] Lauren A. Selchick, Schenectady County Department of Social Services, Schenectady, forrespondent. Diane M. Herrmann, Schenectady, attorney for the child.
McCarthy, J. Appeals from three orders of the Family Court of Schenectady County (Powers,J.), entered August 3, 2010, October 14, 2010 and April 8, 2011, which, among other things,granted petitioner's application, in a proceeding pursuant to Social Services Law § 384-b,to adjudicate Syles DD. to be a permanently neglected child, and terminated respondent's parentalrights.
After respondent used excessive corporal punishment on her son (born in 2002), sheconsented to his removal from her home to foster care in March 2008. In June 2008, FamilyCourt adjudicated him to be a neglected child. The child continuously remained in foster care formore than one year, leading petitioner to commence this proceeding seeking to terminaterespondent's parental rights based upon permanent neglect (see Social Services Law§ 384-b). After a fact-finding hearing, the court granted petitioner's application toadjudicate respondent's son a permanently neglected child. Following a dispositional hearing, thecourt terminated [*2]respondent's parental rights. Respondentappeals from the orders entered after fact-finding and disposition.
"The threshold inquiry in a permanent neglect proceeding is whether petitioner established byclear and convincing evidence that it made diligent efforts to encourage and strengthen theparent-child relationship" (Matter ofAlycia P., 24 AD3d 1119, 1120 [2005] [citations omitted]; see Social ServicesLaw § 384-b [7] [a]). Here, petitioner presented the testimony of two of its caseworkerswho worked with the family, as well as the child's counselor from an outside agency. Petitioneralso submitted records from numerous agencies. These documents and witnesses established thatpetitioner offered or referred respondent to parenting classes, weekly visitation, individualcounseling, domestic violence counseling, anger management classes, temporary shelter,transportation to visits and appointments, regular service plan reviews, and counseling with thechild to strengthen the parent-child bond. Thus, petitioner made the required diligent efforts (see Matter of Alexa L. [Nilza L.], 79AD3d 1290, 1292-1293 [2010]).
Petitioner also established that respondent failed todevelop a realistic plan for the child's future. While respondent disagrees with some of FamilyCourt's findings, instead pointing to her own testimony or that of her witnesses, we defer to thehearing court's credibility determinations (see Matter of Kaiden AA. [John BB.], 81 AD3d 1209, 1211[2011]). Respondent testified that she initially was upset with petitioner for removing her childand would not cooperate with recommended services. Despite not being employed, she refused toenroll in day sessions of parenting education classes to which she was referred in August 2008,because they might conflict with employment if she did find a job. She eventually enrolled inevening parenting classes in June 2009 and completed them in August 2009. She refused toengage in preventative services because she believed that they were not specifically required bycourt order, although she testified at the hearing that she would engage in those services if theywere required to have her son return to her care. Respondent did not engage in or recognize aneed for anger management or domestic violence treatment or counseling, despite severalaltercations with her fiancÉ resulting in police intervention. Respondent complained thatpetitioner did not assist her to find suitable housing, but she declined the referral to a domesticviolence shelter and eventually moved back in with her fiancÉ. Notwithstanding thedomestic violence she experienced, including incidents in the presence of her daughter,respondent proffered her fiancÉ as a resource to assist her in caring for her son.
Respondent attended less than half of the child's counseling sessions that were arrangedpartly to assist in working through family issues and to strengthen the bond between her and herson. She initially refused to attend attention deficit hyperactivity disorder classes that wererequired as part of an evaluation process to determine if her child had a diagnosable disorder.Respondent also failed to regularly visit with her son. Petitioner arranged regular weekly visitswith respondent, and even increased them to weekend unsupervised overnight visits. Theovernight visits had to be rearranged because respondent had a dispute with the foster parent whowas providing transportation. When petitioner attempted to arrange for a weekday overnightvisit, respondent apparently responded that she would have to think about it and that she couldnot get up early to get the child to school. She then did not see the child for three months,apparently because she was having personal conflicts with her fiancÉ. Following her firstvisit after that three-month gap, respondent went another three months without visiting her child.Overall, respondent missed 15 of 40 scheduled visits. Of the potential or actual visits that couldhave occurred during the relevant time period, respondent missed 44 of 66 visits. Although [*3]respondent eventually completed or engaged in some of therequired or recommended classes and services, her efforts were belated or inconsistent.Considering respondent's failure to consistently visit with her child, adequately establish a stableand safe living environment for him, and meaningfully establish a realistic plan for his future,Family Court properly determined that she permanently neglected her son (see Matter of Nicholas R. [Jason S.],82 AD3d 1526, 1528 [2011], lv denied 17 NY3d 706 [2011]; Matter of Destiny CC., 40 AD3d1167, 1169 [2007]).
Family Court did not err in terminating respondent's parental rights, as a suspended judgmentwould not have been in the child's best interests (see Matter of Kellcie NN. [Sarah NN.], 85 AD3d 1251, 1252[2011]). Although respondent obtained employment prior to the dispositional hearing, hervarying work schedule caused her to miss visits, counseling sessions and other appointments. Sherefused to ask her boss for set days off for visitation, asserting that she did not want her employerto know her personal business. Respondent had a personality conflict with the visitationsupervisor, causing respondent to refuse to provide her work schedule to the supervisor; instead,respondent gave her schedule to petitioner's caseworker, who then had to furnish it to the otherservice providers. Respondent also refused to consent to the child receiving medication that hadbeen prescribed. While respondent contended that she merely needed more information andwanted a second opinion, she did not contact the medical provider, although petitioner suppliedher with the phone number. Respondent's testimony indicated that she was more concerned withher rights, and upset that petitioner did not include her in the decision-making process, than withher son's needs. She lacked insight into the need for counseling with the child to address thereason for his removal (compare Matter of Sayeh R., 91 NY2d 306, 315 [1997]).Respondent implied that sending her son home to live with her would solve his attachment andadjustment disorders.
Although respondent had reasons for missing many of her visits and appointments, stabilityis important for this child, especially in light of his special needs. Her reasons for missing visitsare irrelevant to him; any missed visit leaves him feeling unloved or forgotten, and the possibilitythat respondent might not show up causes him anxiety before every visit. Additionally, thefrequency of the child engaging in physical altercations with other children increased afterscheduled visits, whether the visit took place or not. On the other hand, the child was living in afoster home with a woman who was willing and ready to adopt him, and who had sons that thechild referred to as his brothers. Considering all of the circumstances, Family Court did not abuseits discretion in terminating respondent's parental rights (see Matter of Alexa L. [NilzaL.], 79 AD3d at 1293; Matter ofKeegan JJ. [Amanda JJ.], 72 AD3d 1159, 1161-1162 [2010]; Matter of Nevaeh SS. [Valerie L.], 68AD3d 1188, 1189-1190 [2009]).
Mercure, A.P.J., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the orders areaffirmed, without costs.