| Matter of Michael JJ. (Gerald JJ.) |
| 2012 NY Slip Op 08593 [101 AD3d 1288] |
| December 13, 2012 |
| Appellate Division, Third Department |
| In the Matter of Michael JJ. and Another, Children Alleged to bePermanently Neglected. Tompkins County Department of Social Services, Respondent; GeraldJJ., Appellant. (Proceeding No. 1.) In the Matter of Michael JJ. and Another, Children Alleged tobe Permanently Neglected. Tompkins County Department of Social Services, Respondent;Colleen JJ., Appellant. (Proceeding No. 2.) |
—[*1] Kelly M. Corbett, Fayetteville, for Colleen JJ., appellant. Joseph Cassidy, Tompkins County Department of Social Services, Ithaca, for respondent. Andrea J. Mooney, Ithaca, attorney for the children.
Garry, J. Appeals (1) from an order of the Family Court of Tompkins County (Rowley, J.),entered November 2, 2011, which granted petitioner's application, in proceeding No. 1 pursuantto Social Services Law § 384-b, to adjudicate respondent's children to be permanentlyneglected, and terminated his parental rights, and (2) from two orders of said court, enteredOctober 18, 2011 and November 3, 2011, which, among other things, granted petitioner'sapplication, in proceeding No. 2 pursuant to Social Services Law § 384-b, to adjudicaterespondent's children to be permanently neglected, and terminated her parental rights.
Respondent Gerald JJ. (hereinafter the father) and respondent Colleen JJ. (hereinafter themother) are the parents of two children, born in 2004 and 2005. In October 2009, the childrenwere removed from the father's custody and placed in foster care as a result of his alcohol abuseand other issues. Petitioner thereafter commenced neglect proceedings against him and developeda service plan, including a requirement that he participate in alcohol abuse treatment. Thechildren were not placed with the mother, due in part to reports that the man with whom shelived (hereinafter the paramour) was an untreated sex offender. Petitioner offered the motherparenting classes and other services and developed a service plan that included requirements thatshe establish a residence separate from the paramour and demonstrate her ability to assume fullresponsibility for the children's care. In November 2010, petitioner commenced these permanentneglect proceedings against both respondents. Following fact-finding and dispositional hearings,Family Court adjudicated the children to be permanently neglected and terminated respondents'parental rights. Respondents appeal.[FN1]
First considering the father's claims, he contends that Family Court improperly limitedinquiry at the fact-finding hearing into petitioner's alleged failure to provide the children withappropriate services and foster care. We find upon review that the court did permit extensivetestimony regarding the children's health, special needs, education and counseling, includingtestimony about problems in the foster home. To the extent that the court limited this testimony,these issues were not pertinent to the determination required at fact-finding (see FamilyCt Act § 622)—although, as further discussed below, they were relevant to thedispositional phase of the proceedings. Notably, there was no showing that either petitioner orthe foster family sought to undermine the father's relationship with the children, or that thealleged problems interfered with his ability to maintain contact with the children or plan for theirfuture (see Social Services Law § 384-b [7] [a]; compare Matter of LeonRR, 48 NY2d 117, 124-125 [1979]; Matter of Chorus SS. [Elatisha SS.], 93 AD3d 1097, 1099 n 1[2012], lv denied 19 NY3d 807 [2012]; Matter of Victorious LL. [Jonathan LL.], 81 AD3d 1088, 1090[2011], lv denied 16 NY3d 714 [2011]).[*2]
The father next contends that petitioner failed to makesufficiently diligent efforts to encourage him to obtain a sex offender evaluation. Petitioner'scaseworker testified that upon learning that the father had a history of sexual encounters withunderaged girls and a related criminal conviction, she repeatedly asked him to undergo a sexoffender evaluation, but he vehemently refused to do so. The record contradicts the father's claimthat petitioner did not sufficiently explain its reasons for asking him to undergo this evaluation.His contention that petitioner should have pressed him more insistently to do so is without meritin view of his "utterly [uncooperative]" response (Matter of Sheila G., 61 NY2d 368, 385[1984]; accord Matter of DestinyCC., 40 AD3d 1167, 1169 [2007]).
We find clear and convincing evidence in the record that the father failed to plan for thereturn of the children in that, among other things, he failed to obtain the sex offender evaluation,did not successfully complete alcohol treatment or acknowledge his alcoholism, had unresolvedanger management issues, and took a generally resistant and uncooperative attitude thatinterfered with his ability to comply with the service plan. While the father argues that he neverfailed regular screening tests for alcohol and drug use, there was also considerable testimonyfrom which it could reasonably be inferred that he continued to drink, and his failure to testifypermitted Family Court to draw the strongest inferences against him supported by the record(see Matter of Nassau County Dept. of Social Servs. v Denise J., 87 NY2d 73, 79 [1995];Matter of Jacob WW., 56 AD3d995, 997-998 [2008]). Thus, according deference to the court's credibility assessments andfactual determinations (see Matter ofJyashia RR. [John VV.], 92 AD3d 982, 984 [2012]), we find no reason to disturb thedetermination that the father permanently neglected the children (compare Matter of Alaina E., 59 AD3d882, 886 [2009], lv denied 12 NY3d 710 [2009]; Matter of Chianti FF., 205AD2d 849, 850-851 [1994]).
Turning next to the mother's claims, petitioner was required to show, as pertinent here, thatshe permanently neglected the children by failing to plan for their future despite petitioner'sdiligent efforts to facilitate and strengthen her relationship with them (see Social ServicesLaw § 384-b [7] [a]; Matter ofNeal TT. [Deborah UU.], 97 AD3d 869, 869-870 [2012]). We reject her contention thatpetitioner made insufficiently diligent efforts to assist the paramour in obtaining a sex offenderevaluation, as petitioner's statutory duty to encourage the parental relationship did notconstitute a duty to the paramour. Notably, the efforts made to arrange this evaluation did notsucceed due to circumstances beyond petitioner's control, including the paramour's residence inanother county and his failure to supply requested information.
Next, the mother contends that Family Court improperly relied upon hearsay evidence indetermining that the paramour was an untreated sex offender. Petitioner's caseworker testifiedthat the paramour had admitted to him that he had a history of sexual offenses, including acriminal conviction resulting from sexual abuse of his daughter. The caseworker further statedthat he investigated a hotline report that the paramour had sexually abused his son and, afterinterviewing the son, indicated the report.[FN2]The paramour did not testify, and no other evidence of his sexual or criminal history wasintroduced. In acting as the trier of fact, the court "is presumed to be able to distinguish betweenadmissible evidence and inadmissible evidence and [*3]to rendera determination based upon the former" (Matter of Backus v Clupper, 79 AD3d 1179, 1181 [2010], lvdenied 16 NY3d 704 [2011]). Family Court properly admitted the caseworker's testimonyregarding the paramour's admissions not for its truth, but for the limited purpose of establishing agood-faith basis for petitioner's insistence that the mother establish a separate residence (seeMatter of Marino S., 100 NY2d 361, 372 [2003], cert denied 540 US 1059 [2003];Matter of Christopher II., 222 AD2d 900, 902 [1995], lv denied 87 NY2d 812[1996]). We find that, to the extent that the court appeared to conclude in its decision that theparamour was a sex offender, the court did so in the context of concluding that the mother knewthe serious nature of the accusations against him, such that her rejection of these claims wasunreasonable. Other evidence in the record also supported this conclusion; although the mothernever conceded that the paramour was a sex offender, she did acknowledge that petitioner hadrepeatedly advised her that this was so and that she knew that residing with him was the mostsignificant barrier to the return of her children. Further, as with the father, the mother's failure totestify at the fact-finding hearing permitted the court to draw the strongest possible inferencesagainst her (see Matter of Jacob WW., 56 AD3d at 997-998). In view of thesecircumstances, together with the separate evidence that the mother never progressed beyondsupervised visitation with the children or became capable of safely managing them withoutassistance, we find clear and convincing evidence in the record that she did not develop therequisite "realistic and feasible" plan for the future of her children (Social Services Law §384-b [7] [c]; see Matter of Lisa Z., 278 AD2d 674, 677-678 [2000]).
Finally, the mother contends that during the dispositional hearing, Family Court improperlylimited the previously discussed evidence regarding alleged deficits of the foster parents and,further, that it should have granted her a suspended judgment rather than terminating her parentalrights. We agree with the first contention, but find the error to be harmless in view of otherevidence "including [the mother's] own testimony [that] . . . provides extensivesupport for the court's disposition" (Matter of Kyle K. [Harry K.], 72 AD3d 1592, 1593 [2010], lvdenied 15 NY3d 705 [2010] [internal quotation marks and citation omitted]). Following adispositional hearing, the court is statutorily required to enter an order that dismisses the petition,suspends judgment or commits the child's guardianship and custody to the agency, and mustmake its decision "solely on the basis of the best interests of the child" (Family Ct Act §631; see Matter of Star Leslie W., 63 NY2d 136, 147 [1984]). As to whether a suspendedjudgment was appropriate here, testimony at the dispositional hearing established that the motherhad shown no improvement in her ability to manage the children or care for them safely on herown and that she continued to reside with the paramour, rejecting petitioner's concerns about hissexual history as "a lie." The mother testified on her own behalf, stating that she planned to moveout of the paramour's residence "soon." However, she acknowledged that she had only recentlyformulated the plan to move, that the proposed new residence was not yet habitable, and that shehad not informed her proposed housemate—whose last name she did not know—ofthe children's special needs. The testimony thus established that the mother's plan to move wasunrealistic at best, that she had made no measurable progress in addressing the issues thatprevented her from caring for the children in the first instance, and that further extending thechildren's stay in foster care by suspending judgment would not have been in their best interests(see Matter of Kayla KK. [TracyLL.], 68 AD3d 1207, 1209 [2009], lv denied 14 NY3d 707 [2010]).
The children's foster parents hoped to adopt them if they were freed; thus, consideration ofthe stability and appropriateness of the foster home was of unquestioned significance inanalyzing their best interests (see Matter of Kyle K. [Harry K.], 72 AD3d at 1593),particularly given the evidence adduced during the fact-finding hearing regarding problemsexperienced by [*4]the children in the foster home. Family Courtdid not exclude evidence pertaining to these issues. On the contrary, petitioner's caseworkertestified at length about both children's physical and psychological health, their educationalstatus, the nature of the foster parents' home and their "affectionate" and "appropriate"relationship with the children. The caseworker also fully addressed the problems that had beenpreviously identified, testifying that there had been substantial improvement relative to the son'shealth and his educational and behavioral issues. In cross-examining this caseworker, the father'scounsel sought to explore more recent alleged failings on the foster parents' part, and FamilyCourt allowed some limited inquiry before precluding further questioning on this subject. Whilebroader cross-examination on this issue might have been appropriate given its significance, therewas no objection when the court terminated further questioning, nor any suggestion that thealleged failings were anything more than inconsequential. In any event, the ultimate purpose ofthe dispositional inquiry was not to determine whether the children were in the best possiblefoster placement—a determination statutorily entrusted to petitioner—but to decidewhether their best interests required termination of the mother's parental rights. Given theevidence that the children's progress in the foster home was satisfactory, and the lack of anyevidence that the mother was capable of offering them a safe home, the court's determination tocommit the children's guardianship and custody to petitioner was in their best interests (seeMatter of Kyle K. [Harry K.], 72 AD3d at 1593; compare Matter of Krystal B. [Thomas B.], 77 AD3d 1110, 1111[2010]).
Mercure, J.P., Spain, Stein and McCarthy, JJ., concur. Ordered that the orders enteredNovember 2, 2011 and November 3, 2011 are affirmed, without costs. Ordered that the appealfrom the order entered October 18, 2011 is dismissed, without costs.
Footnote 1: As no appeal as of right liesfrom an order of fact finding in a permanent neglect proceeding, the mother's appeal therefrommust be dismissed (see Matter of AlyssaL. [Deborah K.], 93 AD3d 1083, 1085 [2012]). The mother's appeal from thedispositional order, however, brings up for review the fact-finding order (see Matter of Arianna I. [Roger I.], 100AD3d 1281, 1282 n 1 [2012]).
Footnote 2: Notably, the caseworker'stestimony describing his actions relative to the hotline report was not hearsay, and thus notsubject to the limitations that Family Court placed on the testimony regarding the paramour'sadmissions.