| Matter of Neal TT. (Deborah UU.) |
| 2012 NY Slip Op 05359 [97 AD3d 869] |
| July 5, 2012 |
| Appellate Division, Third Department |
| In the Matter of Neal TT. and Another, Children Alleged to bePermanently Neglected. Tompkins County Department of Social Services, Respondent; DeborahUU., Appellant. |
—[*1] Daniel S. Feder, Tompkins County Department of Social Services, Ithaca, for respondent. Pamela B. Bleiwas, Ithaca, attorney for the children.
McCarthy, J. Appeals from two orders of the Supreme Court (Rowley, J.), entered August11, 2011 and August 23, 2011 in Tompkins County, which granted petitioner's application, in aproceeding pursuant to Social Services Law § 384-b, to adjudicate respondent's children tobe permanently neglected, and terminated respondent's parental rights.
Respondent is the mother of the subject children (born in 1997 and 2001), who wereremoved from her custody in August 2009 based on allegations that she was not properly caringfor them and was exhibiting signs of mental illness. Shortly thereafter, respondent consented to afinding of neglect and was ordered to, among other things, engage in mental health treatment.Respondent failed to do so, and petitioner commenced this proceeding pursuant to SocialServices Law § 384-b in October 2010 seeking to terminate respondent's parental rights.Following fact-finding and dispositional hearings, Supreme Court granted the petition, [*2]adjudicated the children to be permanently neglected andterminated respondent's parental rights, prompting these appeals.
We affirm. To establish permanent neglect, "petitioner was required to prove, by clear andconvincing evidence, that it made diligent efforts to strengthen and encourage the parent-childrelationship and that, despite those efforts, respondent failed to maintain contact with thechild[ren] or plan for the child[ren]'s future" for a period of at least one year or 15 of the mostrecent 22 months since the children were placed in petitioner's custody (Matter of Tyler LL. [Deborah KK.], 84AD3d 1465, 1465 [2011]; see Family Ct Act § 614 [1]; Social Services Law§ 384-b [7] [a]; Matter of Star Leslie W., 63 NY2d 136, 142 [1984]). Diligentefforts include, among other things, "creating a service plan that offers appropriate services to theparent[ ] to resolve the problems preventing return of the child, making suitable arrangements forvisitation and advising the parent of the child's progress and development" (Matter of Tatianna K. [Claude U.], 79AD3d 1184, 1185 [2010]; see Social Services Law § 384-b [7] [f]).
Petitioner established by clear and convincing evidence that it made diligent efforts tostrengthen and encourage respondent's relationship with the children. Respondent was assigned acaseworker who referred her to mental health counseling and parenting classes, provided thechildren with access to a therapist and arranged visitation between respondent and the children.Despite the children's strong desire to avoid contact with respondent and their frequent refusal toparticipate in visitation, the caseworker continuously urged them to engage in brief telephoneconversations with respondent and to write letters to respondent describing their feelings towardher. The caseworker maintained regular contact with respondent, counseled her regardingappropriate topics of conversation and how to communicate with the children and held numerousfamily team meetings and service plan reviews. We therefore find that petitioner demonstrated byclear and convincing evidence that it made diligent efforts to assist respondent in resolving theissues which led to the children's removal in order to reunite the family (see Matter of Angelina BB. [MiguelBB.], 90 AD3d 1196, 1198 [2011]; Matter of Nazelle RR. [Lisa RR.], 85 AD3d 1253, 1254 [2011],lv denied 17 NY3d 710 [2011]; Matter of Laelani B., 59 AD3d 880, 881 [2009]).
We reject respondent's assertion that petitioner's efforts at providing her with mental healthcounseling were untimely. Despite petitioner providing timely referrals, respondent was twiceturned away from mental health services because she denied having a mental illness and felt thatshe did not need counseling. According deference to Supreme Court's credibility determinations(see Matter of Jyashia RR. [JohnVV.], 92 AD3d 982, 984 [2012]), any delay in obtaining counseling was due primarilyto respondent's unwillingness to fully cooperate with the services facilitated by petitioner, whichdoes not negate petitioner's showing of diligent efforts (see Matter of Destiny CC., 40 AD3d 1167, 1168-1169 [2007]; Matter of James X., 37 AD3d1003, 1006 [2007]; Matter ofThomas JJ., 20 AD3d 708, 710-711 [2005]).
The record also supports Supreme Court's finding that respondent failed to adequately planfor the children's future (see Matter ofJacelyn TT. [Carlton TT.], 91 AD3d 1059, 1061 [2012]). Respondent denied any mentalhealth issues and, even at trial, did not understand why the children were afraid of her. Sheasserted that the children were loved and well taken care of, despite their claims that her behaviorwas unpredictable and that she had hit them, locked them in their bedrooms and withheld food.She alleged that the foster parents had "brainwashed" the children, and blamed her lack ofprogress on petitioner's refusal to allow therapeutic visitation. However, the children's therapistadvised respondent that she had to engage in her own therapy [*3]before she could attempt therapy with the children. Still, respondentdenied the need for counseling and refused to acknowledge the children's feelings or the role sheplayed in their removal. Accordingly, Supreme Court properly determined that respondent didnot substantially plan for the children's future, as she failed to " 'take meaningful steps towardalleviating the conditions that led to the children's removal from their home' in the first instance"(Matter of Alaina E., 59 AD3d882, 885 [2009], lv denied 12 NY3d 710 [2009], quoting Matter of Lisa Z.,278 AD2d 674, 677 [2000]; see Matterof Nicole K. [Melissa K.], 85 AD3d 1231, 1232-1233 [2011]; Matter of Eric G., 59 AD3d 785,787 [2009]; Matter of James X., 37 AD3d at 1006-1007).
Finally, Supreme Court did not abuse its discretion in denying respondent's application for asuspended judgment. Respondent continuously failed to address her longstanding mental healthissues, failed to appreciate the children's feelings toward her and blamed others for her situation.Although she was engaged in counseling by the time of the dispositional hearing, respondent didnot take advantage of such opportunities in the past. In addition, both prior to and after visitingwith respondent, the children exhibited signs of distress, including hysterically crying, notsleeping, encopresis and bed wetting, and have been diagnosed as suffering from posttraumaticstress disorder. However, they are thriving in foster care and have bonded with their fosterparents, who intend to adopt them. Thus, we find no reason to disturb Supreme Court's findingthat termination of respondent's parental rights was in the best interests of the children (seeMatter of Angelina BB. [Miguel BB.], 90 AD3d at 1198; Matter of Tailer Q. [Melody Q.], 86 AD3d 673, 675 [2011]; Matter of Maelee N., 48 AD3d929, 930-931 [2008], lv denied 10 NY3d 709 [2008]).
Mercure, J.P., Rose, Kavanagh and Egan Jr., JJ., concur. Ordered that the orders areaffirmed, without costs.