| Matter of Jyashia RR. (John VV.) |
| 2012 NY Slip Op 00673 [92 AD3d 982] |
| February 2, 2012 |
| Appellate Division, Third Department |
| In the Matter of Jyashia RR. and Another, Children Alleged to bePermanently Neglected. Tompkins County Department of Social Services, Respondent; JohnVV., Appellant. |
—[*1] Keith I. Cassidy, Tompkins County Department of Social Services, Ithaca, for respondent. Natalie B. Miner, Homer, attorney for the children.
Spain, J.P. 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.
Respondent is the father of two daughters (born in 2002 and 2006) (hereinafter the children).The children lived with respondent and their mother, and the mother's two other children (born in1998 and 2005) who have other fathers. In July 2008, after petitioner received reports of verbaland physical domestic violence between the parents in the presence of all four children and that apasserby found the two youngest children down the street without supervision while the parentswere at home, all of the children were removed by petitioner and placed in a [*2]foster home.[FN1] In December 2008, respondent consented to a finding of neglect and the children remained infoster care. In January 2010, almost 18 months after the children were placed in foster care,petitioner commenced this permanent neglect proceeding. Following a hearing, Family Courtdetermined that respondent had permanently neglected the children and, after a dispositionalhearing, terminated his parental rights and freed the children for adoption. On respondent'sappeal, we affirm.
The threshold inquiry in any permanent neglect proceeding is whether the agency hasestablished by clear and convincing evidence that, despite its diligent efforts to encourage andstrengthen the parental relationship, a parent has failed for a period of at least one year to plan forhis or her children's future, although able to do so (see Social Services Law §384-b [7]; Family Ct Act § 614; Matter of Star Leslie W., 63 NY2d 136, 142[1984]). "[A]n agency fulfills its obligation by offering the appropriate services and encouragingparticipation; clearly, however, the agency cannot guarantee that a parent will be successful"(Matter of Sadie K., 249 AD2d 640, 641 [1998]). "Indeed, an agency that has embarkedon a diligent course but faces an utterly un-co-operative or indifferent parent should neverthelessbe deemed to have fulfilled its duty" (Matter of Sheila G., 61 NY2d 368, 385 [1984]),especially where the parent is difficult to contact and unwilling to change his or her behavior (see Matter of Willard L., 23 AD3d964, 965 [2005], lv denied 6 NY3d 708 [2006]).
Here the record reflects that petitioner referred respondent to a number of services, includinga psychological evaluation, mental health counseling and parenting programs. Additionally,respondent was assigned a caseworker to assist with the skills he needed to regain custody of thechildren, and a family worker who supervised his weekly visitation and demonstrated appropriateparenting skills. Petitioner provided periodic service plan reviews and family team meetings.Although respondent asserts that petitioner failed to take the initiative to find and send him to anew mental health counseling program in June 2009, when he maxed out of a short-term(14-month) local counseling program, he took no responsibility for his failure to follow therecommendation of his counselor that he "seek out additional therapy with a new therapist in thecommunity." He neither sought out a follow-up program on his own nor asked petitioner forassistance in finding a new program.
The record supports Family Court's conclusion that, although respondent participated in mostof the services and programs provided, he did not meaningfully benefit from them and was oftennot cooperative with petitioner, believing from the beginning that the children had beenwrongfully removed. Petitioner had difficulty contacting respondent by phone or by mail after thechildren were removed, and respondent rarely contacted the caseworker and refused to provideaccurate information as to where and with whom he lived and worked. Moreover, despite aFamily Court mandate that he find suitable housing for the children, it was almost a full yearbefore respondent finally obtained a residence and began the process of having it approved forhome visitation. While respondent disputed key parts of the testimony offered by petitioner,Family Court's factual findings reflect that its credibility determinations favored the evidence andtestimony presented by petitioner, and we give deference to the court's credibility assessments(see Matter of Maelee N., 48 AD3d929, 930 [2008], lv denied 10 NY3d 709 [2008]; Matter of Alijah XX., 19 AD3d 770, 771 [2005]). On the recordbefore us, we find that petitioner established by clear and convincing evidence that it providedappropriate services and made diligent efforts to reunite respondent with his children.
Once petitioner established its threshold diligent efforts, the inquiry turns to whetherpetitioner established that respondent failed—for a period of more than a year—to"substantially and continuously or repeatedly . . . maintain contact with or plan forthe future of the child, although physically and financially able to do so" (Social Services Law§ 384-b [7] [a]; see Family Ct Act § 614 [1] [d]). Notably, " 'contact andplanning are alternative elements, and proof of failure to perform one [of these elements] issufficient to sustain a finding of permanent neglect' " (Matter of Shannon U., 210 AD2d752, 754 [1994], lv denied 85 NY2d 807 [1995], quoting Matter of Scotty C.,154 AD2d 784, 786 [1989], lv denied 75 NY2d 707 [1990]).
As further evidence of respondent's failure to cooperate and resistence to and failure tobenefit from the services and assistance provided, he frequently arrived late for visitation,disappointing the children and cutting short the scheduled visit, and failed to properly supervisethe children or respond appropriately to their needs. In addition, because he failed to provide asuitable residence at which the children could visit during the first year after their removal,visitation had to take place at petitioner's offices, playgrounds, restaurants and a local "Y." Whenrespondent finally acquired a home in June 2009, petitioner's inspection of the house for approvalwas impeded because respondent first gave petitioner the wrong address; later, when petitioner'scaseworker appeared at the correct address for the initial inspection in July 2009, the electricityhad not yet been activated, the cupboards were almost bare, and all indications were thatrespondent was not actually residing there, precluding approval of the residence. Even after homevisits were ultimately approved and ongoing, respondent refused an opportunity to expand theone-hour weekly visits, citing his long work hours. Further, when he was offered the option ofweekend visits supervised by a friend or family member—if he could recruit a personfound to be suitable by petitioner—respondent said that he would consider that option, butnever followed up with petitioner. Although respondent knew where his older child wasattending school, he made no effort to engage in parent meetings and activities or to inquire ofher progress from the foster parents. Despite the parenting programs he attended and the effortsof the caseworkers and the family worker who supervised visitation, respondent continued tohave difficulty with his supervision of the children. In addition, he did not progress to a pointwhere he could manage them safely, even for a short period of time, failing to show any realinsight into the circumstances which led to their removal.[FN2] On the record before us, we find ample support for Family Court's conclusion that respondent,despite the diligent efforts of petitioner, failed to adequately plan for the future of his children.
We also conclude that the order terminating his parental rights and freeing the children foradoption has a sound and substantial basis in the record and is in their best interests (seeMatter of Star Leslie W., 63 NY2d at 148). Testimony at the dispositional hearing amplyestablished that respondent, who then faced possible eviction from his home, made little or no[*3]progress in planning for the children. The children, who werewith the same foster parent—who intended to adopt them—for the entire period oftheir removal, were, with few exceptions, thriving and getting the services they needed.
Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: The parental rights of themother to all four children were terminated in an order affirmed by this Court (Matter of Nazelle RR. [Lisa RR.], 85AD3d 1253 [2011], lv denied 17 NY3d 710 [2011]).
Footnote 2: Notably, although he wasreferred to a special parenting program for infants and toddlers, respondent attended only two outof the six sessions offered by the program.