| Matter of Angelo AA. (Tashina DD.) |
| 2014 NY Slip Op 08688 [123 AD3d 1247] |
| December 11, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Angelo AA. and Another, ChildrenAlleged to be Permanently Neglected. Tompkins County Department of Social Services,Respondent; Tashina DD., Appellant. |
Pamela B. Bleiwas, Ithaca, for appellant.
Keith Cassidy, Tompkins County Department of Social Services, Ithaca, forrespondent.
Robin A. Masson, Ithaca, attorney for the children.
McCarthy, J. Appeal from an order of the Family Court of Tompkins County(Rowley, J.), entered August 1, 2013, which granted petitioner's application, in aproceeding pursuant to Social Services Law § 384-b, to adjudicate thesubject children to be permanently neglected children, and terminated respondent'sparental rights.
Respondent is the mother of Angelo AA. (born in 2010) and Ryan CC. (born in2007). Petitioner commenced a neglect proceeding against respondent, which resulted inthe removal of the children from her care. She consented to a finding of neglect. Morethan a year later, petitioner commenced this permanent neglect proceeding seeking toterminate respondent's parental rights. After a fact-finding hearing, Family Courtadjudicated the children to be permanently neglected by respondent. Following adispositional hearing, the court terminated respondent's parental rights and freed thechildren for adoption. Respondent appeals.
Family Court properly found that petitioner made diligent efforts to encourage andstrengthen the parent-child relationship. As a threshold matter on this petition toterminate [*2]parental rights on the ground of permanentneglect, petitioner was required to prove by clear and convincing evidence that it madediligent efforts to strengthen the parent-child relationship and encourage familyreunification (see Social Services Law § 384-b [7] [a]; Family CtAct § 614 [1] [c]). Diligent efforts include, among other things, makingarrangements for visitation with the children, keeping the parent apprised of thechildren's development, and providing a range of services to address the problems thatled to the children's removal or are preventing the children's discharge from care(see Social Services Law § 384-b [7] [f]; Matter of Hailey ZZ. [RickyZZ.], 19 NY3d 422, 429 [2012]). An agency need only make reasonable efforts,and it will be deemed to have fulfilled its obligation if appropriate services are offeredbut the parent refuses to engage in them or does not progress (see Matter of SheilaG., 61 NY2d 368, 385 [1984]; Matter of James X., 37 AD3d 1003, 1006 [2007]).
Here, petitioner created a service plan that identified three main issues preventingreunification: respondent's aggressive behavior toward the children and poor parentingskills, her drug dependency, and her propensity for involving herself in relationships thatinclude domestic violence. Petitioner arranged regular supervised visitation thatprogressed to include some portions of each visit being unsupervised. Petitioner referredrespondent to parenting and anger management classes. Although respondent completedthose classes, she later yelled at her child during a supervised visit and engaged in someanger-related behavior toward adults that required police involvement. Petitioner referredrespondent to the Advocacy Center, where she enrolled in and completed a domesticviolence awareness class and participated in a women's empowerment group. Despitethese services, respondent continued to involve herself with men who had a history ofdomestic abuse toward her and other women. The service plan stated that respondent wasto continue her mental health counseling, indicating that a referral was not necessarybecause respondent was already engaged in such counseling.
Respondent enrolled in the Family Treatment Court program to address hersubstance abuse dependency. After respondent tested positive for marihuana multipletimes, petitioner referred her to an inpatient drug treatment program. Respondent deniedhaving a problem and left the program early, against medical advice. She tested positiveagain, enrolled in and completed a different inpatient drug treatment program, thenentered outpatient treatment. At the outpatient treatment facility, she was enrolled in aprogram that deals with both substance abuse and past emotional trauma. The licensedclinical social worker who ran a group program at the facility and conducted one-on-onecounseling with respondent testified that respondent often failed to actively participate ingroup sessions and was eventually dropped from the program due to poor attendance atgroup and individual sessions. Respondent had stated to the social worker that she nolonger wanted those services. Respondent did immediately enroll in another outpatientdrug program, but had not completed it by the time the petition was filed. Respondentwas removed from the Family Treatment Court program for failing to progress within thetime parameters. Contrary to the service plan, respondent did not continue her mentalhealth counseling after she finished inpatient drug treatment (compare Matter of Jyashia RR.[John VV.], 92 AD3d 982, 983 [2012]).
Respondent argues that petitioner should have referred her to services designed toaddress her past sexual abuse. Family Court credited the social worker's testimony thatthe outpatient drug treatment program was designed for people with dual diagnoses ofsubstance abuse and emotional trauma, the program addresses both components andteaches coping mechanisms, and respondent first needed to get stabilized before theycould delve deeply into the sexual abuse trauma so as to avoid a drug relapse.Respondent also argues that petitioner failed to make diligent efforts because it did notrefer her for a psychological evaluation with IQ testing as initially set forth in her serviceplan, and it took many months to obtain a psychosocial [*3]evaluation. Petitioner's caseworker explained that shedetermined that IQ testing was not necessary because respondent seemed to understandwhat she was told, even if she did not agree with it or follow through. As for theevaluations, similar information was obtained from the records of a psychiatrist at one ofthe inpatient programs. Additionally, the social worker testified that, after a preliminarymental health evaluation, the mental health organization relayed that it had no otherprograms that would be necessary or better than the dual diagnosis program in whichrespondent was engaged at the outpatient drug treatment facility.
Respondent did successfully complete some classes and improved her parentingskills, but she continued to be involved with men who committed acts of domesticviolence, she used marihuana, she did not continue in mental health counseling and shedid not complete substance abuse treatment. Thus, Family Court properly found thatpetitioner made diligent efforts and, despite those efforts, respondent permanentlyneglected her children (seeMatter of Chorus SS. [Elatisha SS.], 93 AD3d 1097, 1098 [2012], lvdenied 19 NY3d 807 [2012]).
Family Court did not deny respondent due process by precluding her expert witness.The admissibility of expert testimony is generally left to the trial court's discretion (see People v Williams, 20NY3d 579, 584 [2013]; Hurrell-Harring v State of New York, 119 AD3d 1052,1053 [2014]). While the offer of proof stated that the expert would testify about a morecurrent method of dual diagnosis treatment, this information was not relevant to thediligent efforts issue; the question was whether petitioner offered or referred respondentto appropriate services, not whether some better service might have been available(see Matter of Michael Anthony Vincent J., 253 AD2d 619, 621-622 [1998],lv dismissed 92 NY2d 1026 [1998]). Accordingly, the court did not abuse itsdiscretion in precluding the expert's testimony.
Lahtinen, J.P., Rose, Lynch and Clark, JJ., concur. Ordered that the order is affirmed,without costs.