| Matter of Jayden J. (Johanna K.) |
| 2012 NY Slip Op 07917 [100 AD3d 1207] |
| November 21, 2012 |
| Appellate Division, Third Department |
| In the Matter of Jayden J., a Child Alleged to be PermanentlyNeglected. St. Lawrence County Department of Social Services, Respondent; Johanna K.,Appellant. (And Another Related Proceeding.) |
—[*1] David Willer, St. Lawrence County Department of Social Services, Canton, for respondent. Scott Walling, Queensbury, attorney for the child.
Malone Jr., J. Appeal from an order of the Family Court of St. Lawrence County (Richards,J.), entered October 31, 2011, which, among other things, granted petitioner's application, in aproceeding pursuant to Social Services Law § 384-b, to adjudicate Jayden J. to be apermanently neglected child, and terminated respondent's parental rights.
The child that is the subject of the instant proceeding was born in 2006 and placed in fostercare based upon derivative neglect resulting from prior termination of respondent's parentalrights to two of her other children. In March 2010, petitioner commenced this proceedingalleging that respondent permanently neglected the child by failing to adequately plan for hisfuture (see Social Services Law § 384-b [7] [a]) and sought termination of herparental rights. Following fact-finding and dispositional hearings, Family Court foundpetitioner's allegations to have been proven by clear and convincing evidence, ordered thatrespondent's parental rights be terminated and freed the child for adoption by his foster parents.This appeal ensued.[*2]
Respondent, as so limited by her brief, contends thatFamily Court's finding that she failed to plan for the future of the child is not supported by therecord. We disagree. "In order to establish permanent neglect, the petitioner is required to prove,by clear 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 Chorus SS. [ElatishaSS.], 93 AD3d 1097, 1098 [2012], lv denied 19 NY3d 807 [2012] [internalquotation marks and citations omitted]). "[C]ontact and planning are alternative elements, andproof of failure to perform one [of these elements] is sufficient to sustain a finding of permanentneglect" (Matter of Jyashia RR. [JohnVV.], 92 AD3d 982, 984 [2012] [internal quotation marks and citations omitted];see Matter of Star Leslie W., 63 NY2d 136, 142-143 [1984]; Matter of Chorus SS.[Elatisha SS.], 93 AD3d at 1098). Planning for the future of the child requires that a parent"take such steps as may be necessary to provide an adequate, stable home and parental care forthe child . . . . The plan must be realistic and feasible, and good faith effort shallnot, of itself, be determinative" (Social Services Law § 384-b [7] [c]; see Matter of Elijah NN., 20 AD3d728, 729 [2005]).
Here, there is no dispute that respondent maintained contact with the child and that sheparticipated in various services and programs offered or recommended by petitioner. However,despite initial progress from the services provided, the record reflects that respondent gleanedlittle meaningful benefit from those services. Significantly, respondent continually involvedherself in abusive and volatile relationships, despite completing two separate educationalprograms regarding domestic violence. Furthermore, although acknowledging the abusive natureof the relationships, respondent testified that she still maintains friendships with those men. Therecord also establishes that during the trial placement of the child with respondent, she was foundin the presence of one of these men, along with her children, which was in violation of an orderof protection. As a result of such violation, as well as respondent's consumption of alcohol anddishonesty with petitioner regarding her actions and those living in her household, the trialplacement was terminated and the child was returned to foster care.
In view of the foregoing, and according deference to Family Court's credibility findings, clearand convincing evidence in the record supports Family Court's finding that respondent failed tomake permanent, meaningful changes to address the specific issues that led to the child's removalin the first instance, notwithstanding her participation in services offered by petitioner.Accordingly, the determination terminating respondent's parental rights on the basis that she didnot appropriately plan for the child's future will not be disturbed (see Matter of Chorus SS.[Elatisha SS.], 93 AD3d at 1099).
Peters, P.J., Rose, Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.