| Matter of Joshua E.R. (Yolaine R.) |
| 2014 NY Slip Op 08441 [123 AD3d 723] |
| December 3, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Joshua E.R. Cardinal McCloskeyCommunity Services et al., Respondents; Yolaine R. et al., Appellants. (Proceeding No.1.) In the Matter of Jeranamor A.R., Jr. Cardinal McCloskey Community Services et al.,Respondents; Yolaine R. et al., Appellants. (Proceeding No. 2.) In the Matter of ElijahJ.R. Cardinal McCloskey Community Services et al., Respondents; Yolaine R. et al.,Appellants. (Proceeding No. 3.) |
Richard Giacoma, Jamaica, N.Y., for appellant Yolaine R.
Frank Bruno, Jr., Glendale, N.Y., for appellant Jeranamor R.
Geoffrey P. Berman, Larchmont, N.Y., for respondent Cardinal McCloskeyCommunity Services.
Angela S. Hull, Jamaica, N.Y., attorney for the children.
Appeals from three orders of fact-finding and disposition of the Family Court,Queens County (Margaret P. McGowan, J.) (one as to each child), all entered September20, 2013. Each order found that the mother and the father had permanently neglected thesubject child and terminated their parental rights as to the subject child.
Ordered that the orders are affirmed, without costs or disbursements.
[*2] The mother and the father have three children:Jeranamor A.R., Jr., Elijah J.R., and Joshua E.R. Jeranamor was removed from theparents' care in November 2007 at the age of five months following the filing of aneglect petition by the Administration for Children's Services of the City of New York(hereinafter ACS), alleging drug use by the father and mental illness as to the mother.Elijah also was removed within days of his birth in October 2008 and placed with thesame foster family as Jeranamor. Joshua was born in March 2010 and was placed with adifferent foster family within a few days of his birth.
The petitioner agency informed the parents of a service plan for the return ofJeranamor and Elijah, which included taking parenting classes, attending domesticviolence training, entering an anger management program, and consistently maintainingvisitation with the children. The mother was also instructed to engage in mental healthservices, which included therapy and medication. The father was required to enter andcomplete a drug rehabilitation program. After Joshua was placed in foster care, themother was further informed that she needed to maintain her mental health treatment,continue visitation in a consistent fashion, and obtain stable housing. The father wasinstructed to complete all the services recommended with respect to the olderchildren.
In September 2010, the agency filed petitions pursuant to article 6 of the FamilyCourt Act, alleging that Jeranamor and Elijah were permanently neglected pursuant toSocial Services Law § 384-b. The agency filed a third petition in December2011, alleging that Joshua also was permanently neglected due to the parents' failure toplan for his return and to maintain continuous contact with him.
Following the mother's testimony on direct examination during the fact-findinghearing as to the older children, she failed to appear in court on the date of hercross-examination. The Family Court struck her testimony and drew a negative inferencefrom her failure to testify. On the next hearing date, the mother appeared with counseland moved to vacate her default, asserting that she failed to arrive in a timely fashion onthe previous hearing date because her train was delayed. The court denied the request,and found that Jeranamor and Elijah were permanently neglected. Following a secondfact-finding hearing, the court also found Joshua to be permanently neglected. After adispositional hearing with respect to all three petitions, the court found that it was in thechildren's best interests for the parental rights of the mother and father to be terminatedand for the agency to receive custody of the children so that they could eventually beadopted by their respective foster mothers. The parents separately appeal.
The mother contends that the Family Court should have vacated her default, whichresulted from her failure to appear for her cross-examination during the first fact-findinghearing. The question of whether to relieve a party of an order entered on default is amatter left to the sound discretion of the court (see Matter of Morales v Marma, 88 AD3d 722, 722[2011]). In a proceeding such as the one at issue here, which is to terminate parentalrights pursuant to Social Services Law § 384-b, a parent must show thatthere was a reasonable excuse for the default and a potentially meritorious defense inorder to establish his or her entitlement to vacatur of a default order (see CPLR5015 [a]; Matter of OrangeCounty Dept. of Social Servs. v Germel Y., 101 AD3d 1019, 1020 [2012]; Matter of Cassidy Sue R., 58AD3d 744 [2009]; Matterof Francisco R., 19 AD3d 502 [2005]; Matter of Vanessa F., 9 AD3d 464 [2004]; Matter of Daquan Malik B., 6AD3d 428, 429 [2004]). Contrary to the mother's contentions, she failed to provide areasonable excuse or a potentially meritorious defense. She failed to present detailedinformation or documentation to substantiate her claim of a delay in transportation. Inaddition, the mother did not explain her failure to contact her attorney or the court (see Matter of Christopher James A.[Anne Elizabeth Pierre L.], 90 AD3d 515 [2011]; Matter of Chelsea Antoinette A.[Anna S.], 88 AD3d 627 [2011]). The mother also presented no defense at all insupport of her application to vacate her default. Accordingly, the Family Court did noterr in denying the mother's request to vacate her default.
The Family Court also properly found that both parents had permanently neglectedthe subject children. A parent has permanently neglected a child when he or she fails fora period of at least one year after the child came into the custody of an authorized agencysubstantially and [*3]continuously or repeatedly tomaintain contact with or plan for the future of the child (see Social Services Law§ 384-b [7] [a]; Matter of Naomi G., 65 AD3d 1344, 1344-1345 [2009]; Matter of Ray A., 30 AD3d410, 411 [2006]). The threshold consideration in a proceeding to terminate parentalrights on the ground of permanent neglect is whether the agency established by clear andconvincing evidence that it fulfilled its statutory obligation to exercise diligent efforts toencourage and strengthen the parental relationship (see Matter of Sheila G., 61NY2d 368, 381, 385 [1984]; Matter of Hadiyyah J.M. [Fatima D.R.], 91 AD3d 874[2012]; Matter of DarleneL., 38 AD3d 552, 554-555 [2007]). Diligent efforts are reasonable attempts byan authorized agency to assist, develop, and encourage a meaningful relationshipbetween the parent and child, including, inter alia, making referrals for counseling,making suitable arrangements for the parent to visit with the child, providing assistanceto the parents to resolve the problems preventing the child's discharge, and advising theparents of the child's progress and development (see Social Services Law§ 384-b [7] [f]; Matter of Christopher John B. [Christopher B.], 87 AD3d1133, 1133-1134 [2011]; Matter of Sykia Monique G., 208 AD2d 535, 537[1994]).
"An agency that has exercised diligent efforts but is faced with an uncooperativeparent is deemed to have fulfilled its statutory obligations. . . . At aminimum, parents must take steps to correct the conditions that led to the removal of thechild from their home" (Matter of Zechariah J. [Valrick J.], 84 AD3d 1087,1087-1088 [2011] [citations and internal quotation marks omitted]). A parent's partialcompliance with a service plan is insufficient to preclude a finding of permanent neglect(see Matter of Hadiyyah J.M. [Fatima D.R.], 91 AD3d at 875), as is a parent'sfailure to gain insight as to the need for services and the reasons for the child's placementin the first instance (see Matterof Tynell S., 43 AD3d 1171, 1173 [2007]).
Here, the credible evidence showed that, contrary to her claims, the mother failed toconsistently visit the children and did not comply with her mental health treatmentprogram. Indeed, the mother's behavior in court and her repeated hospitalizations beliedher claim that she was taking her medication on a consistent basis. Further, the fatheradmittedly continued to take drugs and did not complete a drug rehabilitation program,which was the main component of mandatory services that he was required to completeas part of the plan to reunite with the children. Additionally, the agency's credibleevidence showed that the father's visitation with the children was inconsistent. We see noreason to disturb the Family Court's finding of permanent neglect as to both parents(see Matter of Hadiyyah J.M. [Fatima D.R.], 91 AD3d at 875).
In addition, the Family Court properly determined that the best interests of thechildren would be served by terminating the parental rights of the mother and the fatherand freeing the children for adoption by their respective foster mothers (seeFamily Ct Act § 631; Matter of Anthony L. [Anthony C.], 95 AD3d 1330[2012]). Although siblings should generally be kept together, "the rule is not absoluteand may be overcome" by a showing that the best interests of the children are served byseparating them (Matter ofEnder M. Z.-P. [Olga Z.], 109 AD3d 834, 836 [2013]). In light of the specialneeds of each child and the parents' inability to recognize or understand the nature ofthese needs, and in light of the strong bond the children had with their foster mothers, itwas appropriate to terminate parental rights even if the result of termination andsubsequent adoption would be that the children would live separately (see Matter of James WW. [TaraXX.], 100 AD3d 1276, 1279 [2012]; Matter of Alyssa M., 55 AD3d 505, 506 [2008]; Matter of Alpacheta C., 41AD3d 285 [2007]; Matter of Matthew YY., 274 AD2d 685, 689 [2000];Matter of Bykya Minnie E., 212 AD2d 365, 365-366 [1995]; Matter of MaryLiza J. v Orange County Dept. of Social Servs., 198 AD2d 350, 351-352[1993]).
Finally, contrary to the mother's assertions, a suspended judgment was not warranted.The mother did not ask for entry of a suspended judgment. In any event, each of thechildren had bonded with their respective foster mothers with whom they had been livingsince infancy. The children have known only the foster homes as their homes, and it wasnot in the children's best interests to suspend judgment and prolong foster care (see Matter of Isis M. [DeeannaC.], 114 AD3d 480, 481 [2014]; Matter of Angelica W. [Dorothy W.], 80 AD3d 772, 773[2011]).
[*4] The mother's and father'sremaining contentions are without merit. Mastro, J.P., Roman, Sgroi and Maltese, JJ.,concur.