| Matter of Chorus SS. (Elatisha SS.) |
| 2012 NY Slip Op 02357 [93 AD3d 1097] |
| March 29, 2012 |
| Appellate Division, Third Department |
| In the Matter of Chorus SS. and Others, Children Alleged to bePermanently Neglected. Tompkins County Department of Social Services, Respondent; ElatishaSS., Appellant. |
—[*1] Joseph Cassidy, Tompkins County Department of Social Services, Ithaca, for respondent. Andrea J. Mooney, Ithaca, attorney for the children.
Egan Jr., J. Appeal from an order of the Family Court of Tompkins County (Rowley, J.),entered April 15, 2011, which granted petitioner's application, in a proceeding pursuant to SocialServices Law § 384-b, to adjudicate respondent's children to be permanently neglected,and terminated respondent's parental rights.
Respondent is the biological mother of seven children, four of whom—Chorus SS.(born in 2004), Saul SS. (born in 2005) and twin girls, Leonorah SS. and Giordan SS. (born in2008)—are the subject of this proceeding. Chorus and Saul initially were placed inpetitioner's custody in March 2006, at which time respondent entered Tompkins County FamilyTreatment Court and was provided with services to address her substance abuse, mental healthand financial issues, as well as her history of choosing dangerous relationship partners. Thechildren were [*2]returned to respondent's care—underpetitioner's continued supervision—in February 2008. Approximately one year later,respondent tested positive for benzodiazepine and, during a follow-up home visit, petitionerdiscovered that respondent had violated a court order prohibiting a certain individual from havingcontact with her children. As a result, all four children were removed from respondent's home inMarch 2009. Thereafter, in April 2010, petitioner commenced this proceeding pursuant to SocialServices Law § 384-b seeking to terminate respondent's parental rights. Following lengthyfact-finding and dispositional hearings, Family Court adjudicated respondent's children to bepermanently neglected and terminated respondent's parental rights. This appeal by respondentensued.
We affirm. "In order to establish permanent neglect, the petitioner is required to prove, byclear and convincing evidence, that it made diligent efforts to strengthen and encourage theparent-child relationship and that, despite those efforts, the respondent failed to maintain contactwith the child or plan for the child's future for a period of one year or 15 of the most recent 22months" (Matter of Angelina BB.[Miguel BB.], 90 AD3d 1196, 1197 [2011] [citations omitted]; see Family CtAct § 614 [1] [c], [d]; Social Services Law § 384-b [4] [d]; [7] [a]; Matter of Jacelyn TT. [Carlton TT.], 91AD3d 1059, 1060 [2012]). "[C]ontact and planning are alternative elements, and proof offailure to perform one [of these elements] is sufficient to sustain a finding of permanent neglect"(Matter of Jyashia RR. [John VV.],92 AD3d 982, 984 [2012] [internal quotation marks and citations omitted]). Additionally,while the petitioning agency is required to undertake "affirmative, repeated and meaningfulefforts to restore the parent-child relationship" (Matter of Marquise JJ. [Jamie KK.], 91 AD3d 1137, 1139 [2012][internal quotation marks and citation omitted]; see Matter of Victorious LL. [Jonathan LL.], 81 AD3d 1088, 1090[2011], lv denied 16 NY3d 714 [2011]), it "cannot guarantee that a parent will besuccessful" (Matter of Sadie K., 249 AD2d 640, 641 [1998]).
Here, petitioner referred respondent to mental health counseling and numerous substanceabuse programs, as well as programs designed to improve respondent's financial stability andassist her in making better relationship choices. Additionally, petitioner scheduled and facilitatedsupervised visitations with respondent's children, made unannounced home visits to monitorrespondent's progress and compliance, engaged in periodic drug testing, met with respondent ona regular basis, conducted team meetings in conjunction with Tompkins County FamilyTreatment Court and respondent's various service providers and endeavored to keep respondentapprised of the children's progress in foster care. Such proof, in our view, is more than sufficientto discharge petitioner's obligation to exercise diligent efforts (see Matter of Crystal JJ. [Sarah KK.],85 AD3d 1262, 1263 [2011], lv denied 17 NY3d 711 [2011]; Matter of Laelani B., 59 AD3d880, 881 [2009]; see also Matter ofSyles DD. [Felicia DD.], 91 AD3d 1054, 1055 [2012]).[FN1]
We are equally persuaded that petitioner met its burden of demonstrating that [*3]respondent failed to plan for her children's future. At the very least,respondent was required to take meaningful steps to address the specific issues that led to thechildren's removal from her home in the first instance (see Matter of Eric G., 59 AD3d 785, 787 [2009]), and her failure todo so "is interpreted as [a] failure to plan for [her children's] future" (Matter of Tailer Q. [Melody Q.], 86AD3d 673, 674 [2011] [internal quotation marks and citations omitted]). Although it isundisputed that respondent, among other things, exercised the vast majority of her visitationswith her children and successfully completed two inpatient programs for substance abuse, shenonetheless was unable to remain clean and sober during the one-year period preceding the filingof the permanent neglect petition in April 2010 and persisted in making poor relationshipchoices.[FN2]In this regard, the record reflects that respondent tested positive for amphetamines in June 2009,twice tested positive for alcohol in September 2009 and tested positive for cocaine in November2009 and December 2009. Notably, respondent—by her own admission—used herpaycheck and a portion of the proceeds from the sale of her vehicle to purchase cocaine, whichshe used "every day" between November 15, 2009 and December 21, 2009. Thus, despiterespondent's progress in other areas, her established history of both relapses and poor relationshipchoices supports Family Court's finding that respondent failed to plan for her children's future(see Matter of Crystal JJ. [Sarah KK.], 85 AD3d at 1264; Matter of Sierra C. [Deborah D.], 74AD3d 1445, 1447 [2010]; Matter ofKaytlin TT., 61 AD3d 1085, 1087 [2009], lv denied 13 NY3d 709 [2009];Matter of Laelani B., 59 AD3d at 881-882).
As to disposition, Family Court did not abuse its sound discretion in denying respondent'srequest for a suspended judgment—particularly in view of the fact that respondentadmitted to using crack cocaine three weeks prior to the dispositional hearing—and, basedupon our review of the record as a whole, we agree that termination of respondent's parentalrights was in the children's best interests (see Matter of Sierra C. [Deborah D.], 74 AD3dat 1447-1448; Matter of Laelani B., 59 AD3d at 882). Finally, inasmuch as respondent'sparental rights were terminated in an adversarial proceeding, Family Court would have beenwithout authority to grant any request that respondent may have made for postterminationvisitation with her children (see Matterof Xionia VV. [Amos VV.], 78 AD3d 1452, 1453 [2010]; Matter of Melissa DD., 45 AD3d1219, 1221-1222 [2007], lv denied 10 NY3d 701 [2008]). Respondent's remainingcontentions, to the extent not specifically addressed, have been examined and found to be lackingin merit.
Mercure, A.P.J., Rose, Malone Jr. and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Although the relationshipbetween respondent and the foster mother was at times problematic, the record as a whole doesnot support respondent's claim that the foster mother undermined respondent's relationship withher children (see Matter of JonathanNN. [Michelle OO.], 90 AD3d 1161, 1164 [2011], lv denied 18 NY3d808 [2012]; Matter of Victorious LL. [Jonathan LL.], 81AD3d at 1090).
Footnote 2: On this latter point, respondenthad a demonstrated history of socializing with ex-convicts—despite being aware ofpetitioner's concerns as to the potential threat that these individuals posed to, among other things,the children's safety.