| Matter of Samuel DD. (Margaret DD.) |
| 2014 NY Slip Op 08517 [123 AD3d 1159] |
| December 4, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Samuel DD., a Child Alleged to bePermanently Neglected. Albany County Department for Children, Youth and Families,Respondent; Margaret DD., Appellant. |
Bruce E. Knoll, Albany, for appellant.
Jeffrey G. Kennedy, Albany County Department for Children, Youth and Families,Albany, for respondent.
Jeffrey Berkun, Albany, attorney for the child.
Stein, J.P. Appeals from two orders of the Family Court of Albany County (M.Walsh, J.), entered July 13, 2012 and March 18, 2013, which granted petitioner'sapplication, in a proceeding pursuant to Social Services Law § 384-b, toadjudicate Samuel DD. to be a permanently neglected child, and terminated respondent'sparental rights.
Respondent is the mother of Samuel DD. (born in 2001). In May 2009, petitionercommenced a Family Ct Act article 10 proceeding to adjudicate Samuel to be a neglectedchild and alleged, among other things, that respondent had educationally neglected thechild and failed to provide him with necessary medical treatment, which resulted in thechild exhibiting severe behavioral issues at school. Additionally, petitioner alleged thatrespondent's own mental health issues prevented her from appropriately caring for thechild. Shortly thereafter, the child was removed from respondent's custody and placed infoster care, where he has since remained. In July 2009, respondent agreed to areunification plan proposed by petitioner. Although respondent initially complied withthe evaluative aspects of the plan, she ultimately refused to follow the recommendationsthat resulted from the evaluations. At a subsequent Family Court appearance, respondentopposed the reunification plan, particularly the recommendation that the child receivemedication for his mental health conditions.
Following a fact-finding hearing, Family Court adjudicated the child to be neglected.The parties thereafter stipulated to an order of disposition in March 2010 which, amongother things, placed respondent under petitioner's supervision for one year, continued thechild's placement with petitioner and directed that the child remain in his currentresidential placement.[FN1] The dispositional order also directedthat the child be provided with a specialized classroom setting and mental healthtreatment, including counseling. It further required respondent to undergo a mentalhealth evaluation, receive treatment and participate in family counseling. Additionally,Family Court ordered weekly supervised visitation between respondent and thechild.
As a result of respondent's refusal to comply with the terms of the dispositionalorder, petitioner commenced this permanent neglect proceeding. Following a fact-findinghearing, Family Court adjudicated the child to be permanently neglected and, after asubsequent dispositional hearing, terminated respondent's parental rights. Respondentnow appeals from both the fact-finding and dispositional orders.[FN2]
We affirm. "To establish permanent neglect, petitioner was required to prove by clearand convincing evidence that it made diligent efforts to strengthen the parent-childrelationship and that, despite those efforts, [respondent] has failed to . . .substantially plan for the child[ ]'s future for one year after the agency has been chargedwith the child[ ]'s care, although [she was] physically and financially able to do so" (Matter of Alister UU. [AngelaVV.], 117 AD3d 1137, 1138 [2014] [internal quotation marks and citationsomitted]; see Social Services Law § 384-b [7] [a]; Matter of Marissa O. [GraceNN.], 119 AD3d 1097, 1098 [2014]; Matter of Jayden J. [Johanna K.], 100 AD3d 1207, 1208[2012], lv denied 20 NY3d 860 [2013]). As to the threshold inquiry of whetherpetitioner satisfied its statutory duty of strengthening the parent-child relationship withdiligent efforts (see Matter of Star Leslie W., 63 NY2d 136, 142 [1984]), therecord here amply demonstrates the efforts made by petitioner to assist respondent inovercoming the obstacles to her reunification with the child since July 2009, when thechild was removed from respondent's custody and placed in foster care. Specifically,petitioner developed a two-step plan towards reunification. The first step was aimed atevaluating the child's educational needs, as well as the mental health needs of respondentand the child, while maintaining the parental relationship through regular visitation. Tothat end, petitioner, among other things, arranged for a 45-day evaluation of the child,meetings with the child's school district to plan for the child's education needs and apsychological evaluation of respondent.
The plan's second step required, among other things, respondent's attendance andparticipation in follow-up meetings to discuss the recommendations made as a result ofthe evaluations and to develop an overall service plan. Once the service plan was inplace, respondent was required to undergo mental health treatment and participate infamily counseling. In this regard, petitioner made arrangements for the recommendedservices and repeatedly attempted to convince respondent to engage in those services.Additionally, petitioner provided the child with weekly counseling in accordance withthe professional recommendations made following the child's diagnosis of hyperactivitydisorder and oppositional defiance disorder. Petitioner also notified respondent of thepermanency planning meetings and service plan reviews and reminded respondent aboutmeetings with the school district regarding the child. At all relevant times, petitionerarranged weekly supervised visitation between the child and respondent and providedfinancial assistance to respondent to facilitate those visits. In view of the extensiveservices provided by petitioner, we discern no basis to disturb Family Court's finding thatpetitioner made the requisite diligent efforts that were appropriately tailored torespondent's circumstances to encourage and strengthen the parent-childrelationship[FN3](see Social Services Law § 384-b [7] [a]; Matter of Alister UU.[Angela VV.], 117 AD3d at 1138; Matter of Asianna NN. [Kansinya OO.], 119 AD3d 1243,1244-1245 [2014], lv denied 24 NY3d 907 [Oct. 23, 2014]; Matter ofCory N. [Jessica O.], 111 AD3d 1079, 1080 [2013]).
The record reflects that, notwithstanding petitioner's diligent efforts, respondentcontinuously refused to acknowledge the reasons and conditions that led to the child'splacement in petitioner's custody and supports Family Court's determination that,respondent "refused by failing to engage in key services designed to overcome [the]barriers to reunification," thereby failing to plan for the child's future despite beingphysically and financially able to do so. Although respondent attended most of thescheduled supervised visits with the child and exhibited appropriate behavior duringthose visits, following some initial evaluations, she refused to discuss the evaluativerecommendations or participate in recommended counseling services or mental healthtreatment for herself or the child, including family therapy. Additionally, she missedseveral scheduled permanency planning meetings and service plan reviews.
Overall, respondent exhibited a consistent failure to cooperate with petitioner fromthe time the child was removed from her custody and failed to make any meaningfuleffort toward addressing the issues that led to the child's removal in the first instance(see Matter of Asianna NN. [Kansinya OO.], 119 AD3d at 1247). In fact, sheaffirmatively expressed to caseworkers that she would not comply with certain aspects ofthe dispositional order. Thus, petitioner established by clear and convincing evidence thatrespondent permanently neglected the child by failing to plan for his future for a periodof more than one year (seeMatter of Carter A. [Courtney QQ.], 121 AD3d 1217, 1219-1220 [2014]; Matter of Chorus SS. [ElatishaSS.], 93 AD3d 1097, 1098 [2012], lv denied 19 NY3d 807 [2012]).
As to disposition, we are unpersuaded that Family Court should have granted asuspended judgment in lieu of terminating respondent's parental rights (seeFamily Ct Act §§ 631 [b]; 633; Matter of Carter A. [CourtneyQQ.], 121 AD3d at 1220). " 'Following an adjudication of permanentneglect, the sole concern at a dispositional hearing is the best interests of the child andthere is no presumption that any particular disposition, including the return of a child to aparent, promotes such interests' " (Matter of Johanna M. [John L.], 103 AD3d 949, 951[2013], lv denied 21 NY3d 855 [2013], quoting Matter of Angelica VV., 53AD3d 732, 733 [2008]; see Family Ct Act § 631; Matter ofStar Leslie W., 63 NY2d at 147-148). Initially, we reject respondent's argument thatFamily Court erred in failing to conduct an in camera interview with the child, as nonewas requested by any of the parties and such interview is not statutorily required(see Social Services Law § 384-b [3] [k]). In any event, the attorneyfor the child adequately conveyed to Family Court the child's ambivalence anduncertainty regarding his wishes for the future.
With respect to the merits of the dispositional determination, there is no doubt thatrespondent and the child enjoy a loving relationship despite their limited contact duringthe child's placement in foster care. However, it is also evident that respondent failed totake advantage of the numerous services and various forms of assistance offered bypetitioner, and made minimal efforts to ameliorate the problems that led to the child'sremoval from her care. Respondent also had a history of unstable housing and refused todivulge her current address to petitioner's caseworkers. Moreover, at the time ofdisposition, the child had been in foster care for four years and was placed in atherapeutic foster home where his special needs were being addressed. Considering thecircumstances and affording deference to Family Court's choice of dispositionalalternatives, there is a sound and substantial basis in the record for its determination thattermination of respondent's parental rights was in the child's best interests, and we,therefore, decline to disturb it (see Matter of Jayden T. [Amy T.], 118 AD3d 1075, 1076[2014]; Matter of Madalynn I.[Katelynn J.], 111 AD3d 1205, 1207 [2013]; Matter of Cory N. [JessicaO.], 111 AD3d at 1082).[FN4]
Respondent's remaining contentions have been considered and are found to belacking in merit.
McCarthy, Garry, Lynch and Devine, JJ., concur. Ordered that the appeal from theJuly 13, 2012 order is dismissed, without costs. Ordered that the March 18, 2013 order isaffirmed, without costs.
Footnote 1: On appeal, this Courtaffirmed Family Court's neglect order (Matter of Samuel DD. [Margaret DD.], 81 AD3d 1120[2011]).
Footnote 2: Respondent's appealfrom the July 13, 2012 order must be dismissed, as no appeal as of right lies from anorder of fact-finding in a permanent neglect proceeding (see Matter of Jah'Meir G. [EshaleG.], 112 AD3d 1014, 1015 [2013], lv denied 22 NY3d 863 [2014]; Matter of Kayden E. [Luis E.],111 AD3d 1094, 1095 n 2 [2013], lv denied 22 NY3d 862 [2014]).However, respondent's appeal from the dispositional order brings up for review thefact-finding order (see id.).
Footnote 3: We reject respondent'sargument that petitioner did not make diligent efforts because it failed to investigatepossible "religious-based" therapy. While respondent did make some inquiry as to thepossibility of such therapy, the hearing testimony reveals that petitioner did not havecontacts for such services and, although the order of supervision allowed respondent toselect her own counselor, she never proposed a possible "religious-based" provider.Moreover, respondent changed churches and refused to provide petitioner's caseworkerswith a release to enable them to obtain information regarding the availability ofappropriate faith-based services to meet her needs.
Footnote 4: While there is somemerit to respondent's contention that Family Court should not have adopted seeminglyinconsistent concurrent permanency goals of freeing the child for adoption and returninghim to her custody (see Matterof Julian P. [Melissa P.—Zachary L.], 106 AD3d 1383, 1384 [2013]; Matter of Dakota F. [AngelaF.], 92 AD3d 1097, 1098-1099 [2012]), respondent did not appeal from thepermanency orders setting forth such goals (see e.g. id.). In any event, we areunconvinced that, under the circumstances here, any such error constitutes a basis todisturb either Family Court's determination that respondent permanently neglected thechild or the resulting disposition.