| Matter of Britiny U. (Tara S.) |
| 2015 NY Slip Op 00268 [124 AD3d 964] |
| January 8, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Britiny U., a Child Alleged to bePermanently Neglected. Ulster County Department of Social Services, Respondent; TaraS., Appellant. (Proceeding No. 1.) In the Matter of Manuel U., a Child Alleged to bePermanently Neglected. Ulster County Department of Social Services, Respondent; TaraS., Appellant. (Proceeding No. 2.) |
Marshall Nadan, Kingston, for appellant.
Heather Harp, Ulster County Department of Social Services, Kingston, forrespondent.
Ted J. Stein, Woodstock, attorney for the children.
McCarthy, J.P. Appeals from two orders of the Family Court of Ulster County(McGinty, J.), entered [*2]November 25, 2013, whichgranted petitioner's applications, in two proceedings pursuant to Social Services Law§ 384-b, to adjudicate the subject children to be permanently neglected, andterminated respondent's parental rights.
In November 2011, petitioner removed respondent's two children (born in 2003 and2009) from her care upon her arrest and incarceration for the rape of a 12-year-old child.She was ultimately convicted of rape in the second degree and sentenced to three years inprison followed by 10 years of postrelease supervision. In December 2012, petitionerfiled permanent neglect petitions for both children. Following hearings, Family Courtadjudged the children to be permanently neglected by respondent and terminated herparental rights. Respondent appeals.
Initially, the petitions complied with the statutory time prerequisite. Permanentneglect can only be established if a child is in the care of an authorized agency for, asrelevant here, one year and the parent fails to maintain contact or plan for the child'sfuture during that time period (see Social Services Law § 384-b [7][a]). Respondent incorrectly argues that the time when a parent is incarcerated does notcount toward that one-year time period. The statute excludes time when "a parent isactually hospitalized or institutionalized," but that statutory toll is stated directly after asubdivision discussing hospitalization or institutionalization due to drug or alcohol use(Social Services Law § 384-b [7] [d] [ii]). Hence, the toll applies to timeperiods when a parent is in an institution or hospital for drug or alcohol treatment, notwhen a parent is in a penal institution (see e.g. Matter of Gregory B., 74 NY2d77, 82, 89 [1989]; Matter ofKaiden AA. [John BB.], 81 AD3d 1209, 1209-1211 [2011]; Matter of Lawrence KK.[Lawrence LL.], 72 AD3d 1233, 1233-1235 [2010], lv denied 14 NY3d713 [2010]). Thus, the petitions complied with the statutory time requirement.
Respondent did not preserve her argument that Family Court improperly relied oninadmissible hearsay evidence. "Only competent, material and relevant evidence may beadmitted in a fact-finding hearing"; hearsay is not competent, so it is not admissible(Family Ct Act § 624; see Family Ct Act § 1046 [b][iii]; Matter of Aiden XX. [JesseXX.], 104 AD3d 1094, 1096 n 5 [2013]). Because the caseworker assigned torespondent and her children during the relevant time period had left the employ ofpetitioner's contractor, petitioner's only witness at the fact-finding hearing was thecaseworker's supervisor. Respondent objected to the supervisor's testimony twice on theground of hearsay. Family Court overruled the first objection, noting that a hearsayobjection may be appropriate at a later time, but not as to that particular question. Thecourt sustained the second objection. Inasmuch as respondent did not make furtherhearsay objections, she did not preserve her current argument that most of thesupervisor's testimony was inadmissible hearsay (see Matter of Perry v Surplus, 112 AD3d 1077, 1080[2013]; Matter of Kayden H.[Kareena H.], 104 AD3d 764, 765 [2013]; compare Kulak v NationwideMut. Ins. Co., 40 NY2d 140, 145-146 [1976]). Hence, we will not address thatargument, and will rely on the supervisor's testimony as evidence when addressingrespondent's argument that petitioner failed to meet its burden.
Petitioner made diligent efforts to strengthen the parent-child relationship, butrespondent failed to adequately plan for the children's future and maintain contact withthem. Where a parent is incarcerated, an agency's duty may be satisfied by "informing theparent of the children's well-being and progress, responding to the parent's inquiries,investigating relatives suggested by the parent as placement resources, and facilitatingcommunication between the children and the parent" (Matter of Charles K. [Charles L.], 100 AD3d 1308, 1308[2012]; accord Matter ofJoannis P. [Joseph Q.], 110 AD3d 1188, 1190 [2013], lv denied 22NY3d 857 [2013]; see Social Services Law § 384-b [7] [f]). Here,petitioner presented evidence that the caseworker sent regular letters to respondentconcerning the children's well-being and [*3]respondent'srights, as well as informing her that the caseworker could accept collect calls to discussthe situation. When respondent suggested the children's uncle as a possible placementresource, petitioner's caseworker attempted to contact the uncle but received no response.While respondent was in the local jail for several months before her conviction, she wasprovided with biweekly visitation with the children. After her transfer to a statecorrectional facility six hours away, Family Court did not require visitation due to thetravel distance as well as recommendations from the children's therapists againstvisitation. During that time period, the caseworker encouraged respondent to write lettersto the children and for them to write back to her or draw pictures for her. The caseworkeralso kept in contact with respondent's corrections counselor regarding her programmingin prison. Hence, petitioner met its burden of showing that it engaged in diligent effortsto facilitate respondent's relationship with the children (see Matter of Joannis P.[Joseph Q.], 110 AD3d at 1190; Matter of Kaiden AA. [John BB.], 81 AD3d 1209,1209-1210 [2011]).
Respondent was required, "despite [her] incarceration, to develop a realistic plan forthe children's future" (Matter ofJohanna M. [John L.], 103 AD3d 949, 950 [2013], lv denied 21 NY3d855 [2013]). Her plan was for the children to remain in foster care throughout herincarceration and for a period of time thereafter as necessary for her to establish suitableliving arrangements for the children. She had uncertain plans to move herself and herchildren in with a new boyfriend that she met a few months earlier while in prison, andwho the children had never met, but also testified that she would need to get to know himbetter. These vague plans, which would leave the children in foster care for a period ofyears, were not viable to secure permanency for the children (see Matter of JohannaM. [John L.], 103 AD3d at 951; Matter of Hailey ZZ. [Ricky ZZ.], 85 AD3d 1265, 1266[2011], affd 19 NY3d 422 [2012]; Matter of Kaiden AA. [John BB.], 81AD3d at 1210-1211). Respondent also had not adequately addressed the problem that ledto the children's removal, so as to plan for their return to her care. Despite being orderedto participate in sex offender treatment, she took months to enroll. Her testimonyregarding the reasons for the delay were not consistent or compelling. Respondent'stestimony regarding the underlying crime also shows that she failed to fully acceptresponsibility and understand the errors in judgment that led to her sexual relationshipwith a 12-year-old boy. Although respondent did successfully complete parenting andanger management classes, she failed to fully address the underlying problems that led tothe children's removal and had no plan other than leaving them in foster care indefinitely.Based on her failure to plan for their future, despite diligent efforts by petitioner, FamilyCourt correctly found that respondent permanently neglected her children, and properlyterminated her parental rights to free the children for adoption (see Matter of HaileyZZ. [Ricky ZZ.], 85 AD3d at 1266-1267).
Family Court did not err in issuing orders of protection prohibiting respondent fromcontacting the children until they reach the age of majority. Although an order ofprotection issued against a parent in a Family Ct Act article 10 proceeding can onlyremain in effect as long as an accompanying dispositional order (see Family CtAct § 1056 [1]; Matter of Sheena D., 8 NY3d 136, 139-140 [2007];compare Family Ct Act § 1056 [4] [permitting orders of protectionto extend throughout a child's minority when applied to a nonparent]), an order ofprotection issued in a termination of parental rights matter can be in effect "for a specifictime," which can include until the child turns 18 (Family Ct Act § 656; see Matter of Kristian J.P. vJeannette I.C., 87 AD3d 1337, 1338 [2011]; Matter of Krista I. v Gregory I., 8 AD3d 696, 698 [2004]).Once respondent's parental rights were terminated, she had no right to contact thechildren and the court had no authority to direct contact between her and the children (see Matter of Hailey ZZ. [RickyZZ.], 19 NY3d 422, 438 [2012]). Respondent's son expressed a desire not to seeher and became upset at hearing her letters, despite being in weekly therapy. Herdaughter, who was only two years old when placed in foster care, had severedevelopmental delays and has bonded to the [*4]fosterparents. Based on this record evidence, the court properly issued orders of protectionprohibiting respondent from contacting the children.
Garry, Lynch, Devine and Clark, JJ., concur. Ordered that the orders are affirmed,without costs.