| Matter of Cory N. (Jessica O.) |
| 2013 NY Slip Op 07781 [111 AD3d 1079] |
| November 21, 2013 |
| Appellate Division, Third Department |
| In the Matter of Cory N., a Child Alleged to bePermanently Neglected. Rensselaer County Department of Social Services, Respondent;Jessica O., Appellant. (Proceeding No. 1.) In the Matter of Kyle N., a Child Alleged to bePermanently Neglected. Rensselaer County Department of Social Services, Respondent;Jessica O., Appellant. (Proceeding No. 2.) In the Matter of Jason N., a Child Alleged tobe Permanently Neglected. Rensselaer County Department of Social Services,Respondent; Jessica O., Appellant. (Proceeding No. 3.) |
—[*1] Juliane O'Brien, Rensselaer County Department of Social Services, Troy, forrespondent. Jo M. Katz, Troy, attorney for the children.
Spain, J. Appeal from an order of the Family Court of Rensselaer County (Cholakis,J.), entered June 29, 2012, which granted petitioner's applications, in three proceedingspursuant to Social Services Law § 384-b, to adjudicate respondent's children to bepermanently neglected, and terminated respondent's parental rights.
Respondent is the mother of three children, Jason N., Kyle N. and Cory N., born in2007, 2008 and 2009, respectively. In August 2009, the two older children were removedand voluntarily placed in foster care after respondent, pregnant with Cory, was foundhighly intoxicated and threatening to kill herself. Respondent consented to a FamilyCourt finding of neglect as to the two older children and was placed under a one-yearorder of supervision. After Cory was born in December 2009 and tested positive forcocaine, he was protectively removed. Respondent admitted to prenatal use of cocaineand Family Court adjudicated Cory to be neglected. In August 2011, after the olderchildren had been in foster care for over two years, and Cory for over 18 months sincebirth, petitioner commenced these proceedings alleging that respondent had permanentlyneglected all three children, who continued to reside in the same preadoptive fosterhome. Prior to the fact-finding hearing, the parental rights of the children's father wereterminated. After the fact-finding hearing, Family Court adjudicated the children to bepermanently neglected and, following a dispositional hearing, respondent's parentalrights were terminated, freeing them for adoption. Respondent appeals, and we affirm.
We are not persuaded by respondent's contention that petitioner failed to makediligent efforts to reunite her with her children as required by Social Services Law§ 384-b (7) (a) (see Matter of Star Leslie W., 63 NY2d 136, 142 [1984]).The testimony and evidence adduced at the fact-finding hearing convincinglydemonstrated that petitioner made "affirmative, repeated and meaningful efforts torestore the parent-child relationship[s]" (Matter of Alycia P., 24 AD3d 1119, 1120 [2005]).Petitioner provided a vast array of services to respondent, including supervised visitationand assistance with the children during visitation, caseworkers to support the family andoversee services and resources, referrals for substance abuse and mental healthevaluations and counseling/treatment, a referral and offer to assist in housingprocurement, a referral to drug court and drug treatment, transportation assistance forrespondent and transportation of the children to visitations, scheduling assistance,referral for cognitive evaluations, a parenting program, and employment referrals andassistance. Petitioner also arranged for respondent to participate in an intensive aftercareand prevention program (hereinafter IAPP) run by the Northeast Parent and ChildSociety, an intensive program designed to, among other things, reunite children in fostercare with their parents, and offer expansive services and family assistance in navigatingresources. Respondent was regularly and repeatedly [*2]apprised of the children's progress and development infoster care, of their special needs and health problems, of the implications of protractedfoster care, and of her need to address and correct the problems that led to their removaland to meaningfully plan for their future (see Social Services Law § 384-b[7] [a]; Matter of Isaiah F.,55 AD3d 1004, 1004-1005 [2008]; Matter of George M., 48 AD3d 926, 927 [2008]). Thehearing testimony supports Family Court's determination, and reflects that "petitionerestablished by clear and convincing evidence that it made 'diligent efforts to encourageand strengthen the parental relationship' " (Matter of Nicole K. [Melissa K.], 85 AD3d 1231, 1232[2011], quoting Social Services Law § 384-b [7] [a]; see Matter of Summer G. [AmyF.], 93 AD3d 959, 960-961 [2012]).
Likewise, petitioner established that despite its diligent efforts, respondent did notsubstantially plan for the future of the children in that she failed to "take meaningfulsteps to correct the conditions that led to the child[ren's] removal" (Matter of Tatianna K. [ClaudeU.], 79 AD3d 1184, 1186 [2010]; see Matter of Nathaniel T., 67 NY2d838, 840 [1986]; Matter of Summer G. [Amy F.], 93 AD3d at 961). "A parentplans for the future by utilizing available medical, social and psychological services asneeded and providing a stable and adequate home environment" (Matter of TatiannaK. [Claude U.], 79 AD3d at 1185; see Matter of Gregory B., 74 NY2d 77, 87[1989]; Matter of Star Leslie W., 63 NY2d at 142-143). Respondent failed overthe course of 2½ years to obtain adequate and stable housing appropriate for afamily of four with three young children; as of the February 2012 hearing, she continuedto temporarily reside at the YWCA in a small one bedroom apartment, had no plans toobtain a larger, more permanent apartment, and had declined caseworker assistance inpursuing alternate housing. She had been discharged in the summer of 2011, after only afew months, from the IAPP program for missing numerous appointments and failing toparticipate, progress or meet most of her treatment goals. While respondent apparentlyachieved sobriety and substance abuse abstinence by July 2011, almost two years afterthe older children's removal, she was discharged—as unsuccessful—fromthe local drug treatment court program in August 2011. Although respondent completedmany of the programs required, made some progress and stayed involved, the testimonyfully supports Family Court's conclusion that "[s]he's done . . . almosteverything that's been expected [program-wise] yet she's still not in a position to parentthe children" and "has done very little to get them out of custody."
Respondent's completion of programs and utilization of required services were notsufficient where, as here, "there was no real change in her ability to care for herchild[ren] or to adequately provide for [their] future" (Matter of Joseph ZZ., 245AD2d 881, 883 [1997], lv denied 91 NY2d 810 [1998]), and the record reflectsthat, despite over 2½ years of efforts and assistance, respondent made"[in]sufficient progress for the children to return home safely" (Matter of Nicole K.[Melissa K.], 85 AD3d at 1233). Thus, the record amply supports the conclusion thatrespondent failed to plan for the children's future by "tak[ing] such steps as may benecessary to provide an adequate, stable home and parental care for the child[ren]"(Social Services Law § 384-b [7] [c]; see Matter of Star Leslie W., 63NY2d at 143); as such, permanent neglect was established by clear and convincingevidence (see Social Services Law § 384-b [3] [g] [i]; [4] [d]; [7] [a]).
Finally, according deference to Family Court's findings and choices amongdispositional alternatives, we discern no grounds upon which to disturb the court'sdetermination to terminate her parental rights and free the children for adoption by theirlong-term foster parents, based upon the best interests of the children (see FamilyCt Act § 631; Matter of Summer G. [Amy F.], 93 AD3d at 962; Matter of Marquise JJ. [JamieKK.], 91 AD3d 1137 [2012], lv denied 19 NY3d [*3]801 [2012]). The record did not support the conclusion thatit would be in the children's best interests to give respondent a second chance todemonstrate her ability to be a fit parent by a suspended judgment, particularly given thesubstantial time they have already spent in foster care and the lack of any appreciableprogress by respondent in developing the skills and stability necessary to resumeparenting them (see Matter of Isaiah F., 55 AD3d at 1006-1007). The childrenhave bonded with their foster parents, who have shown the skills and ability to addresseach of their individual special needs and who are willing and able to adopt all threechildren and provide a safe and stable home for them.
Peters, P.J., McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.