| Matter of Jah'Meir G. (Eshale G.) |
| 2013 NY Slip Op 08165 [112 AD3d 1014] |
| December 5, 2013 |
| Appellate Division, Third Department |
| In the Matter of Jah'Meir G., a Child Alleged to bePermanently Neglected. Tompkins County Department of Social Services, Respondent;Eshale G., Appellant. |
—[*1] Joseph Cassidy, Tompkins County Department of Social Services, Ithaca, forrespondent. Maura A. Kennedy-Smith, Ithaca, attorney for the child.
McCarthy, J. Appeals from a decision and two orders of the Family Court ofTompkins County (Rowley, J.), entered September 13, 2012, October 4, 2012 andDecember 18, 2012, which granted petitioner's application, in a proceeding pursuant toSocial Services Law § 384-b, to adjudicate the subject child to be permanentlyneglected, and terminated respondent's parental rights.
Respondent is the mother of Jah'Meir G. (born in 2010). In December 2010, the childwas removed from respondent's home and placed in petitioner's custody due toallegations that she exposed him to an imminent risk of harm through her substanceabuse, frequent parties at her home and failure to provide adequate care and supervision.Upon a stipulation without admissions, Family Court found that respondent neglected thechild. In December 2011, petitioner commenced this proceeding alleging permanentneglect. Following a hearing, the court found that respondent permanently neglected thechild. Family Court then held a combined hearing to address the disposition in thisproceeding and a custody petition filed by the child's [*2]great-grandmother. In separate orders, the court dismissedthe great-grandmother's petition and terminated respondent's parental rights. Respondentappeals.
Initially, we dismiss the appeal from the September 13, 2012 decision because adecision is not an appealable paper (see CPLR 5512 [a]). We dismiss the appealfrom the October 4, 2012 fact-finding order because no appeal lies as of right from anondispositional order in a permanent neglect proceeding pursuant to Social ServicesLaw § 384-b, unlike from a nondispositional order in a neglect proceedingpursuant to Family Ct Act article 10 (see Matter of Alyssa L. [Deborah K.], 93 AD3d 1083,1084-1085 [2012]; compare Family Ct Act § 1112 [a]). Nevertheless,issues from the fact-finding phase of the proceeding may be raised on our review of thedispositional order (see CPLR 5501 [a] [1]; Matter of Arianna I. [Roger I.], 100 AD3d 1281, 1282 n 1[2012]).
Family Court properly found that respondent permanently neglected Jah'Meir.Petitioner met its threshold burden of establishing by clear and convincing evidence thatit made diligent efforts to reunite respondent with her son. Petitioner's caseworkertestified that she maintained steady contact with respondent, created a service plan,arranged visits with the child, held regular family team meetings, made home visits,provided transportation assistance and made referrals for mental health services,substance abuse evaluations and housing assistance (see Social Services Law§ 384-b [7] [f]; Matter ofNeal TT. [Deborah UU.], 97 AD3d 869, 870 [2012]). Although respondentregularly visited with her son, she did not adequately plan for his future (seeSocial Services Law § 384-b [7] [a]). Despite petitioner's offers of assistance,respondent never obtained stable or suitable housing. She continued to associate withvolatile people, resulting in numerous emergency calls to police for unsafe situations,many occurring in respondent's home. Respondent's initial substance abuse evaluationdid not recommend any treatment, but when the caseworker smelled marihuana onrespondent, respondent refused to take a drug test and, once she did and failed, delayedan evaluation and did not engage in treatment. She admitted that she used marihuanaduring this time period. She missed several appointments due to lack of transportationand simply forgetting them, but she did not take advantage of bus passes and calendarsoffered by petitioner. Respondent did not follow through with mental health treatmentand lied to the caseworker about her participation. She did not want to engage in groupparenting classes, so she was accepted into individual classes, but did not complete theprogram by the time of the hearing. Petitioner's employees testified that respondent didnot properly control her emotions during visits and meetings, including in front of thechild, sometimes yelling and threatening petitioner's staff. Considered in totality, theevidence showed that, despite diligent efforts, respondent did not adequately plan for herchild's future because she did not properly address or resolve the problems that led to hisremoval (see Matter of Neal TT. [Deborah UU.], 97 AD3d at 871; Matter of Jyashia RR. [JohnVV.], 92 AD3d 982, 984-985 [2012]; Matter of Laelani B., 59 AD3d 880, 881-882 [2009]).
Family Court did not err in terminating respondent's parental rights rather thangranting a suspended judgment. While respondent had begun mental health treatment,recognized that she had mental health issues and started taking medication, that alloccurred shortly before the dispositional hearing. Respondent admitted that she usedmarihuana daily at some points, as well as other drugs. She tested positive for cocaineand marihuana during this period, including just weeks before the birth of a daughter,who was removed from her care. She was charged with several crimes and involved in adomestic dispute with her daughter's father during the period prior to the dispositionalhearing. Respondent was participating in family treatment court, but was not compliantwith the rules. Under the circumstances, and considering that Jah'Meir had [*3]been in a preadoptive home for about a year, it is in his bestinterests to be freed for adoption (see Matter of Chorus SS. [Elatisha SS.], 93 AD3d 1097,1099-1100 [2012], lv denied 19 NY3d 807 [2012]; Matter of Laelani B.,59 AD3d at 882).
Family Court did not err in declining to place the child with the great-grandmother.Jah'Meir had been living with preadoptive parents for almost a year, had bonded withthem and had only seen the great-grandmother a few times while he was in placement.The great-grandmother, while currently sober for more than four years, had a history ofalcohol abuse, a neglect case was previously brought against her concerning respondentand respondent's sister, the great-grandmother had difficulties in caring for thosechildren—one of whom was still in her care—and she did not acknowledgethat her drinking had negatively affected the children in her care. While a familyplacement with the great-grandmother would have been permissible (see FamilyCt Act §§ 1052 [a] [vi]; 1055-b), it was not in the child's best interests here(see Matter of Sharon V. vMelanie T., 85 AD3d 1353, 1355-1356 [2011]; Matter of Donald W., 17AD3d 728, 730 [2005], lv denied 5 NY3d 705 [2005]).
Rose, J.P., Stein and Garry, JJ., concur. Ordered that the appeals from the decisionentered September 13, 2012 and the order entered October 4, 2012 are dismissed,without costs. Ordered that the order entered December 18, 2012 is affirmed, withoutcosts.