| Matter of Marissa O. (Grace NN.) |
| 2014 NY Slip Op 05220 [119 AD3d 1097] |
| July 10, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 In the Matter of Marissa O., a Child Alleged to bePermanently Neglected. Saratoga County Department of Social Services, Respondent;Grace NN., Respondent; Alexandra G. Verrigni, as Attorney for the Children, Appellant.(Proceeding No. 1.) In the Matter of Erica O., a Child Alleged to be PermanentlyNeglected. Saratoga County Department of Social Services, Respondent; Grace NN.,Respondent; Alexandra G. Verrigni, as Attorney for the Children, Appellant. (ProceedingNo. 2.) In the Matter of Joshua O., a Child Alleged to be Permanently Neglected. [*2]Saratoga County Department of Social Services,Respondent; Grace NN., Respondent; Alexandra G. Verrigni, as Attorney for theChildren, Appellant. (Proceeding No. 3.) |
Alexandra G. Verrigni, Rexford, attorney for the children, appellant.
Karen D'Andrea, Saratoga County Department of Social Services, Ballston Spa, forSaratoga County Department of Social Services, respondent.
Justin C. Brusgul, Voorheesville, for Grace NN., respondent.
Lynch, J. Appeal from an order of the Family Court of Saratoga County (Cortese, J.),entered September 12, 2011, which dismissed petitioner's applications, in threeproceedings pursuant to Social Services Law § 384-b, to adjudicate thesubject children to be permanently neglected.
Respondent is the mother of nine children. In October 2006, Schenectady CountyFamily Court (Powers, J.) determined that respondent neglected five of her children,based in part on its finding that she failed to protect two of her daughters from sexualabuse by their older male sibling. The case was transferred to Saratoga County and, inNovember 2006, Family Court (Abramson, J.) issued an order placing respondent underpetitioner's supervision and an order of [*3]protectionthat, among other things, directed respondent to prevent the abusive sibling from havingany contact with five of respondent's minor children. In March 2008, after it wasdetermined that two of the minor children were again abused by their older sibling whilein respondent's care, she consented to an order placing four of the children in fostercare.
In June 2010, petitioner commenced these proceedings to terminate respondent'sparental rights to three of her children. Following a lengthy hearing, Family Court issueda comprehensive written decision wherein it determined that petitioner did not prove thatrespondent failed to plan for the future of the subject children. The attorney for thechildren now appeals.
As relevant here, "[a]n agency seeking to establish permanent neglect must provethat it made diligent efforts to strengthen the parent-child relationship and that, despitethose efforts, the parent has failed to . . . substantially plan for thechild[ren's] future [for the requisite time period]" (Matter of Tatianna K. [Claude U.], 79 AD3d 1184, 1185[2010]; see Social Services Law § 384-b [7] [a]). To "substantiallyplan," a parent must take "meaningful steps" towards correcting the problems that led tothe child's placement in foster care (Matter of Neal TT. [Deborah UU.], 97 AD3d 869, 871[2012] [internal quotation marks and citations omitted]; accord Matter of Tatianna K.[Claude U.], 79 AD3d at 1185-1186). A parent may demonstrate such planning by" 'utilizing available medical, social and psychological services as needed andproviding a stable and adequate home environment' " (Matter of Cory N. [Jessica O.],111 AD3d 1079, 1081 [2013], quoting Matter of Tatianna K. [Claude U.],79 AD3d at 1185). It is the petitioner's burden to establish a parent's failure to plan by"clear and convincing evidence" (Matter of Victor WW. [Salma XX.], 96 AD3d 1281, 1282[2012]) and "the adequacy of the [parent's] plan must not be evaluated with reference tounrealistically high standards" (Matter of Leon RR, 48 NY2d 117, 125 [1979];see Matter of Tatianna K. [Claude U.], 79 AD3d at 1186). Family Court foundthat petitioner did not prove "by clear and convincing evidence" that respondent failed toplan for her children's future. "This Court accords great deference to such determinations. . . and [we] will disturb its factual findings only if they lack a sound andsubstantial basis in the record" (Matter of Victor WW. [Salma XX.], 96 AD3d at1282 [internal quotation marks and citations omitted]).
The record on appeal reflects that when respondent's children were placed in fostercare, petitioner directed her to continue and complete recommended counseling andtreatment, including sexual victimization and domestic violence treatment. She was alsodirected to participate in psychological, cognitive and behavioral evaluations, to attendanger management and parenting classes, and to cooperate with all recommendedreferrals. The attorney for the children contends that Family Court's determination wasflawed because it did not consider respondent's inability to benefit from the servicesprovided or her failure to acknowledge that her children had been abused. Wedisagree.
While it must be recognized that respondent initially had some difficulty withadjusting to petitioner's supervision, Family Court noted that she attended all of the visitswith her [*4]children, all of the permanency planningmeetings, and participated in all recommended counseling and treatment. The court alsonoted that, during the two-year period prior to the fact-finding hearing, respondent hadremained employed at the same job and found an apartment without petitioner'sassistance. Importantly, both respondent's and the children's treatment providers testifiedthat respondent, over time, was able to acknowledge the role she played in allowing herchildren to be abused.
While respondent may be an imperfect parent who lacks advantages and is burdenedby her limited means, in our view, the record reveals that she used available resources totake "meaningful steps to correct the conditions that led to the [children's] removal"(Matter of Tatianna K. [Claude U.], 79 AD3d at 1186). Accordingly, givingdeference to Family Court's credibility determinations (see Matter of Summer G. [AmyF.], 93 AD3d 959, 961 [2012]), we find that there was a sound and substantialbasis for its finding that petitioner failed to submit clear and convincing evidence thatrespondent did not substantially plan for her children's future (see Matter of VictorWW. [Salma XX.], 96 AD3d at 1284).
The attorney for the children also contends that Family Court improperly relied on acourt-ordered evaluation that was completed in order to assess whether respondent wasunable to care for her children "by reason of mental illness or mental retardation" (SocialServices Law § 384-b [4] [c]; see Social Services Law§ 384-b [6] [e]). Contrary to the attorney for the children's restrictivereading, however, the appointment order specified that Jacqueline Bashkoff, apsychologist, should conduct a mental health evaluation and "any further evaluations[she] deemed necessary." As such, Bashkoff was authorized to address whetherrespondent's ability to care for her children was impaired (compare Matter of Anthony WW.[Michael WW.], 86 AD3d 654, 657 n 5 [2011], lv denied 17 NY3d 897[2011]). Moreover, although petitioner had alternatively alleged that respondent wasunable to care for her children by reason of mental illness or mental retardation(see Social Services Law § 384-b [4] [c]), petitioner withdrew thisclaim and Family Court expressly stated that Bashkoff's opinion, while pertinent torespondent's cognitive abilities, was not "useful . . . with regard to the issuesof permanent neglect." The claims made on behalf of the attorney for the children arethus without merit.
Lahtinen, J.P., McCarthy, Garry and Clark, JJ., concur. Ordered that the order isaffirmed, without costs.