| Matter of Dariana K.C. (Katherine M.) |
| 2012 NY Slip Op 06948 [99 AD3d 899] |
| October 17, 2012 |
| Appellate Division, Second Department |
| In the Matter of Dariana K.C., an Infant. Suffolk CountyDepartment of Social Services, Respondent; Katherine M., Appellant. (Proceeding No. 1.) In theMatter of Kayla M.C., an Infant. Suffolk County Department of Social Services, Respondent;Katherine M., Appellant. Lisa Vega et al., Nonparty Respondents. (Proceeding No.2.) |
—[*1] Dennis M. Cohen, County Attorney, Central Islip, N.Y. (James G. Bernet of counsel), forpetitioner-respondent. The Sallah Law Firm, P.C., Holtsville, N.Y. (Dean J. Sallah of counsel), for nonpartyrespondents. Danielle I. Schwager, P.C., Central Islip, N.Y., attorney for the children.
In two related proceedings pursuant to Social Services Law § 384-b to terminateparental rights on the ground of permanent neglect, the mother appeals, as limited by her brief,from so much of an order of fact-finding and disposition of the Family Court, Suffolk County(Freundlich, J.), dated June 6, 2011, as, after fact-finding and dispositional hearings, determinedthat she permanently neglected the subject children, terminated her parental rights, andtransferred the custody and guardianship of the children to the Suffolk County Department ofSocial Services for the purpose of adoption.
Ordered that the appeal from so much of the order of fact-finding and disposition asterminated the mother's parental rights with respect to the child Dariana K.C., and transferred thecustody and guardianship of that child to the Suffolk County Department of Social Services forthe purpose of adoption, is dismissed as academic, without costs or disbursements, as the childDariana K.C. is deceased; and it is further,
Ordered that the order of fact-finding and disposition is affirmed insofar as reviewed, withoutcosts or disbursements.
The subject children came into the custody of the Suffolk County Department of [*2]Social Services (hereinafter DSS) after the mother relinquished herthen nine-month old daughter, Kayla M.C., to Lisa Vega, an alleged friend of the family whomthe mother had never met before, on April 1, 2009, on a railroad platform in Babylon. Kayla waslegally temporarily removed from the mother's care on June 18, 2009, and later placed into fostercare with Vega and her husband, after DSS certified Vega as a suitable resource. Kayla'sthen-1½-year-old sister, Dariana K.C., was placed into foster care with DSS on June 24,2009, although DSS could not locate her until July 8, 2009, because the mother apparentlyremoved Dariana from Suffolk County and brought her to stay with Dariana's paternal family inMaryland, allegedly to avoid DSS.
Dariana died from an aggressive form of brain cancer after entry of the order appealed from.Therefore, the appeal from so much of the order as terminated the mother's parental rights withrespect to Dariana, and transferred the custody and guardianship of that child to the SuffolkCounty Department of Social Services for the purpose of adoption, must be dismissed asacademic. However, the adjudication of permanent neglect with respect to Dariana constitutes apermanent and significant stigma which might indirectly affect the mother's status in futureproceedings. Accordingly, the appeal from the portion of the order which determined that themother permanently neglected Dariana is not academic (see Matter of Niviya K. [Alfonzo M.], 89 AD3d 1027, 1027-1028[2011]).
To establish permanent neglect as a basis for the termination of parental rights, thepetitioning agency is required to show by clear and convincing evidence that the parent "failedfor a period of either at least one year or fifteen out of the most recent twenty-two monthsfollowing the date such child came into [its] care . . . substantially and continuouslyor repeatedly to . . . plan for the future of the child, although physically andfinancially able to do so, notwithstanding the agency's diligent efforts to encourage andstrengthen the parental relationship" (Social Services Law § 384-b [7] [a]).
Pursuant to Social Services Law § 384-b (7) (c), "to plan for the future of the child"means, "to take such steps as may be necessary to provide an adequate, stable home and parentalcare for the child within a period of time which is reasonable under the financial circumstancesavailable to the parent. The plan must be realistic and feasible, and good faith effort shall not, ofitself, be determinative."
The mother concedes that DSS established by clear and convincing evidence that it exerciseddiligent efforts to encourage and strengthen the parental relationship by, inter alia, facilitating themother's regular visitation with the children, counseling her when needed, and referring themother to various programs where she could obtain housing, counseling, and training to liveindependently (see Social Services Law § 384-b [7] [a], [f]; Matter of StarLeslie W., 63 NY2d 136, 142 [1984]; Matter of Ty-Wan Jayden H. [Lashanda Odessa V.], 95 AD3d 1324[2012]).
Contrary to the mother's contention, the Family Court's determination that she permanentlyneglected the children by failing to plan for their future for a period of one year after they wereremoved from her care is supported by clear and convincing evidence. Although the evidenceshowed that the mother made progress by complying with various mandates of the court anddeveloping coping skills, the mother continued to lack insight into the reasons why the childrenwere removed from her care, which prevented her from correcting such problems and reflectedher failure to plan for the children's future (see Matter of Walter D.H. [Zaire L.], 91 AD3d 950, 951 [2012]; Matter of Anthony R. [Juliann A.], 90AD3d 1055, 1056 [2011]; Matter ofJamel Raheem B. [Vernice B.], 89 AD3d 933 [2011]; Matter of Chyanne H., 62 AD3d876, 877-878 [2009]; Matter ofDarlene L., 38 AD3d 552, 555 [2007]).
At a dispositional hearing after a finding of permanent neglect, the best interests of [*3]the child are paramount (see Social Services Law §384-b [7] [a], [f]; Matter of Walter D.H. [Zaire L.], 91 AD3d at 951; Matter ofAnthony R. [Juliann A.], 90 AD3d at 1056; Matter of Nicholas S. [Rhonda S.], 78 AD3d 841, 842 [2010]; cf. Matter of Christopher T. [MargaritaV.], 94 AD3d 900 [2012]). Based on the strong emotional bond between Kayla and thefoster parents, one of whom is the person to whom the mother initially surrendered Kayla, andtheir continuing support of Kayla in all respects since she was a nine-month old infant, theFamily Court properly determined that it was in Kayla's best interests to terminate the mother'sparental rights and free her for adoption. Angiolillo, J.P., Dickerson, Belen and Miller, JJ.,concur.