| Matter of James WW. (Tara XX.) |
| 2012 NY Slip Op 08187 [100 AD3d 1276] |
| November 29, 2012 |
| Appellate Division, Third Department |
| In the Matter of James WW., a Child Alleged to be PermanentlyNeglected. Rensselaer County Department of Social Services, Respondent; Tara XX., Appellant.(And Another Related Proceeding.) |
—[*1] Timothy R. Shevy, Rensselaer County Department of Social Services, Troy, for respondent. Douglas J. Broda, Troy, attorney for the child.
Kavanagh, J. Appeals from two orders of the Family Court of Rensselaer County (Cholakis,J.), entered April 15, 2011, which, among other things, granted petitioner's application, in aproceeding pursuant to Social Services Law § 384-b, to adjudicate James WW. apermanently neglected child, and terminated respondent's parental rights.
A neglect petition was filed against respondent after her son (born in 2009) tested positive atbirth for drugs. While the petition was pending, the child was placed in the custody of hispaternal grandmother. A few months later, petitioner's caseworker visited the grandmother'shome and discovered that the child apparently did not reside there, but was in fact being cared for[*2]by an individual who had previously been the subject of anindicated report of neglect.[FN1]As a result, custody of the child was transferred to petitioner, which subsequently placed him in afoster home with his current foster parents. Ultimately, Family Court conducted a hearing on theneglect petition and determined that respondent had neglected the child.[FN2]A permanency hearing was held and the court directed that the child remain in petitioner'scustody and in the care of his foster parents.[FN3]
In August 2010, petitioner filed a petition alleging that respondent had permanentlyneglected the child and sought termination of her parental rights.[FN4]At the fact-finding hearing in October 2010, after the first witness was called, respondent, in thepresence of counsel, executed a judicial surrender of her parental rights.[FN5]Shortly thereafter, respondent moved to withdraw this surrender of her parental rights, claimingthat she was under the influence of drugs when she made that decision and, for the first time,argued that the child should be placed with foster parents who practiced the Jewish religion.Family Court granted respondent's motion to vacate the judicial surrender of her parental rightsand conducted a hearing on the permanent neglect petition.[FN6]
At the fact-finding hearing, petitioner's caseworkers testified to their unsuccessful efforts toget respondent to participate in substance abuse programs designed to treat her addiction. Theydescribed the numerous attempts made, all unsuccessful, to facilitate visitation betweenrespondent and the child. Based on this testimony and other evidence introduced at the hearing,Family Court found that, among other things, she had permanently neglected the child. At thedispositional hearing, petitioner asserted that the child's best interests could only be served if hewas placed with his foster parents and freed for adoption. In opposition, respondent's [*3]counsel asserted that because respondent was Jewish, the childshould be placed with a Jewish family who would raise him in the Jewish faith. Family Courtultimately concluded that it was in the child's best interests that respondent's parental rights beterminated, and that he be freed for adoption by his foster parents. Respondent appeals from thatorder.[FN7]
We affirm. Regarding Family Court's finding that respondent permanently neglected thechild, petitioner established by clear and convincing evidence that diligent efforts were made tostrengthen and promote the parental relationship between respondent and the child (seeSocial Services Law § 384-b [7] [a]; Family Ct Act § 614 [1]). Petitioner'scaseworkers testified in detail as to their efforts to reunite respondent with the child and how theyestablished a visitation schedule designed to facilitate her access to the child while the permanentneglect proceeding was pending. Throughout this period, petitioner failed to adhere to thisschedule and continued to refuse to participate in substance abuse counseling (see Matter of Havyn PP. [MoriannaRR.], 94 AD3d 1359, 1361 [2012]). Also, the caseworkers testified to respondent'sfailure to comply with Family Court's dispositional orders, even though she was routinelyinformed of her obligations under them. Simply stated, petitioner established by clear andconvincing evidence that it made a genuine effort to reunite respondent with the child and thateffort was unsuccessful because of respondent's refusal to cooperate with the agency and complywith the dispositional orders issued by Family Court (see Matter of Neal TT. [Deborah UU.], 97 AD3d 869, 870 [2012];Matter of Havyn PP. [Morianna RR.], 94 AD3d at 1361).
Moreover, the record supports Family Court's determination that respondent failed to plan forthe child's future and did not "take meaningful steps toward alleviating the conditions that led to[his] removal" (Matter of Neal TT. [Deborah UU.], 97 AD3d at 871 [internal quotationmarks and citation omitted]; see Social Services Law § 384-b [7] [a], [c];Matter of Havyn P. [Morianna RR.], 94 AD3d at 1361; Matter of Chorus SS. [Elatisha SS.], 93AD3d 1097, 1099 [2012], lv denied 19 NY3d 807 [2012]; Matter of Destiny CC., 40 AD3d1167, 1169 [2007]). In that regard, we again note that since the child was placed at birthwith the grandmother, and during the entire period he was in foster care, respondent did not makea meaningful effort to address her addiction to illegal drugs. Her attendance at Family Court forthis proceeding was, at best, sporadic and, when she did attend, often she could not participatebecause she appeared to be under the influence of drugs. As for respondent's argument that sheplanned for the child's future by advocating placement with the grandmother, the reality is thatthe grandmother was not able to properly care for the child and, by any measure, was anunsuitable resource for his placement.
Respondent also argues that Family Court's decision to free the child for adoption by hisfoster parents ignores New York's constitutional and statutory requirements that children beplaced with foster parents who share the same religious beliefs. We disagree. Family Ct Act§ 116 and Social Services Law § 373 "are to be applied so as to give effect to thereligious wishes [*4]of the natural mother so far as consistentwith the best interests of the child, and where practicable. The religious preferences of the naturalparent are thus subordinated to the best interests of the child which are paramount" (Matter ofMichael D., 37 AD2d 78, 79 [1971] [internal quotation marks and citations omitted];see NY Const, art VI, § 32; Matter of Dickens v Ernesto, 30 NY2d 61,65-66 [1972]). Here, respondent made only a belated request that the child be placed in a Jewishhome and did so only after she had already executed a judicial surrender of her parentalrights.[FN8]By that time, the child had been in foster care for almost 18 months and, throughout that period,respondent's only request was that the child be allowed to live with the paternal grandmother,who is not Jewish. Given the age of the child and the fact that he has developed a strongemotional attachment to his foster parents and has thrived in their care, his interests are clearlybest served by his being freed for adoption by his foster parents (compare Matter of ElianneM., 184 AD2d 98 [1992], lv dismissed 81 NY2d 1067 [1993]).
Finally, we are well aware that adoption by the foster parents will necessarily result in thechild being separated from his sister.[FN9]However, given the circumstances surrounding the sister's placement and her need for specializedmedical care, it would not, in our view, be in the child's best interests that he be placed in a fosterhome where the sister now resides (see Family Ct Act § 1027-a; 18 NYCRR421.18 [d] [3]).
Peters, P.J., Lahtinen, Stein and Egan Jr., JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote 1: Petitioner's caseworker alsoreported that an odor of marihuana permeated the grandmother's apartment.
Footnote 2: The hearing was conducted inrespondent's absence due to her repeated failures to appear as scheduled.
Footnote 3: A petition was later filedalleging that respondent had violated the terms of this dispositional order by failing to participatein substance abuse treatment programs and abstain from using illegal drugs. Also, multiplewarrants were issued for respondent's arrest due to her repeated failure to appear as directed byFamily Court.
Footnote 4: Later, a neglect petition wasfiled against respondent after her daughter (born in 2010) also tested positive at birth for illegaldrugs. This child was placed with foster parents who specialized in providing care for childrenborn addicted to illegal drugs.
Footnote 5: Family Court also terminatedthe parental rights of the child's father.
Footnote 6: Family Court first held a hearingon the neglect petition filed as to respondent's daughter.
Footnote 7: The grandmother also filed apetition seeking custody of the child, which Family Court dismissed. While respondent alsoappealed from the order dismissing that petition, she has not addressed that issue in her brief and,as such, that appeal has been abandoned (see Matter of Loraida R. [Lori S.], 97 AD3d 925, 926 n 2 [2012];Matter of Eck v Eck, 57 AD3d1243, 1244 n [2008]).
Footnote 8: We note that the record does notshow that respondent made a similar request as to her daughter. Also, respondent's parental rightsas to two older children have been previously terminated, and no evidence has been offered thatshe ever requested that either of these children be placed in a Jewish home to be raised in theJewish faith.
Footnote 9: The first time this issue appearsto have been raised is in submissions that respondent made after the dispositional hearing hadbeen conducted.