| Matter of Everett H. (Nicole H.) |
| 2015 NY Slip Op 04686 [129 AD3d 1123] |
| June 4, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Everett H., a Child Alleged to bePermanently Neglected. Fulton County Department of Social Services, Respondent;Nicole H., Appellant. |
Leah W. Casey, Schenectady, for appellant.
Louis Del Giacco, Fulton County Department of Social Services, Johnstown, forrespondent.
Rachel A. Rappazzo, Schenectady, attorney for the child.
Lynch, J. Appeal from an order of the Family Court of Fulton County (Skoda, J.),entered November 12, 2013, which granted petitioner's application, in a proceedingpursuant to Social Services Law § 384-b, to adjudicate the subject child tobe permanently neglected, and suspended judgment for a period of one year.
Respondent is the mother of a child born in 2004. In September 2010, petitioner fileda neglect petition against respondent, alleging, among other things, that she was not ableto provide a stable home environment or to address the child's mental health needs. Thepetition also alleged that respondent threatened to harm herself or the child if the childwas not removed from her care. The child was temporarily removed pursuant to aSeptember 2010 Family Court order and has remained in petitioner's custody since thattime. Pursuant to a June 2011 order, the child was deemed to be neglected and FamilyCourt imposed certain conditions for respondent to follow during the pendency of thechild's placement, including directives that she attend supervised visitation and mentalhealth counseling with the child and parenting skills classes, and that she follow throughwith mental health treatment recommended for her by Mary O'Connor, a clinical [*2]psychologist retained to evaluate respondent following theSeptember 2010 petition. In February 2013, petitioner commenced this proceeding and,after a fact-finding hearing held over four days from May 2013 to August 2013, FamilyCourt determined that respondent had permanently neglected the child. In November2013, after a dispositional hearing, Family Court, upon the consent of the parties and theattorney for the child, suspended judgment for a term of one year. Respondent nowappeals and we affirm.
Initially, we reject petitioner's claim that the appeal is moot because Family Courtissued a suspended judgment, which is a disposition intended "to provide a parent whohas been found to have permanently neglected his or her child with a brief grace periodwithin which to become a fit parent with whom the child can be safely reunited" (Matter of Clifton ZZ. [LatriceZZ.], 75 AD3d 683, 683 [2010] [internal quotation marks and citation omitted]).Unfortunately, no party appeared at oral argument or otherwise updated the Court as tothe child's welfare during the grace period.[FN*] Nevertheless, because "a neglectdetermination creates a permanent and significant stigma that may adversely affectrespondent in future proceedings," the matter is not moot (Matter of Shay-Nah FF. [TheresaGG.], 106 AD3d 1398, 1399 n 1 [2013] [internal quotation marks and citationsomitted], lv denied 21 NY3d 863 [2013]; see Matter of Bayley W. [Jaden W.], 100 AD3d 1203,1203-1204 [2012]; Matter ofJack P. [Joi Q.], 80 AD3d 812, 813 n [2011], lv denied 16 NY3d 710[2011]).
Turning to the merits, in order to establish permanent neglect, petitioner mustdemonstrate first, "by clear and convincing evidence[,] that it made diligent efforts tostrengthen the parent-child relationship and encourage family reunification" (Matter of Angelo AA. [TashinaDD.], 123 AD3d 1247, 1248 [2014]; see Social Services Law§ 384-b [7] [a]; Matter of Jasmine F. [Jeffrey G.], 74 AD3d 1396, 1398[2010]). Such diligent efforts should be designed to address the problems that led to thechild's removal, and to "strengthen the family relationship by such means as assisting theparent with visitation, providing information on the child's progress and development,and offering counseling and other appropriate educational and therapeutic programs andservices" (Matter of Carter A.[Courtney QQ.], 121 AD3d 1217, 1218 [2014]; see Matter of Angelo AA.[Tashina DD.], 123 AD3d at 1248). Here, the primary barrier to family reunificationwas respondent's mental capacity to care for the child, who also had mental health needs.As such, Family Court's June 2011 order and each of the periodic permanency ordersissued thereafter until September 2013 allowed continued supervised visitation andincluded the directive that respondent participate in a parenting skills program, obtainmental health treatment for herself and take medications as prescribed by the treatmentproviders.
At the fact-finding hearing, the testimony established that petitioner transportedrespondent to visitations with the child, who lived in several foster homes and residentialfacilities during the term of placement. Petitioner also provided parenting classes, family[*3]counseling and mental health counseling. Whenrespondent became dissatisfied with the parenting classes offered, petitioner arranged forher to attend classes offered by a different provider. Similarly, when respondent wasdischarged from mental health counseling after she failed to comply with certainobligations, petitioner took steps to expedite her acceptance into an alternative program.Contrary to respondent's claim, we find that Family Court properly determined thatpetitioner made the requisite diligent efforts to encourage and strengthen respondent'srelationship with the child (seeMatter of Kapreece SS. [Latasha SS.], 128 AD3d 1114, 2115 [2015]; Matter of DestinyEE. [Karen FF.], 123 AD3d 1165, 1167 [2014]; Matter of Samuel DD. [MargaretDD.], 123 AD3d 1159, 1161-1162 [2014], lv denied 24 NY3d 918[2015]; Matter of Carter A. [Courtney QQ.], 121 AD3d at 1218). We are notpersuaded by the argument that petitioner failed to tailor the services necessary to addressrespondent's mental health needs. Petitioner offered mental health counseling and,generally, it was obligated to "only make reasonable efforts, and it will be deemed tohave fulfilled its obligation if appropriate services are offered but the parent refuses toengage in them or does not progress" (Matter of Angelo AA. [Tashina DD.], 123AD3d at 1248).
Once petitioner establishes its threshold burden, petitioner is obligated todemonstrate that, "despite [its] 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 Samuel DD. [Margaret DD.], 123 AD3d at 1161 [internal quotationmarks, brackets and citations omitted]; see Social Services Law§ 384-b [7] [a]; Matter of Carter A. [Courtney QQ.], 121 AD3d at1219). We discern no error in Family Court's finding that petitioner met its burden here.Although the court recognized that O'Connor's testimony was of limited value given thetime that had passed since she completed her evaluation, it noted O'Connor'srecommendation that respondent obtain long-term mental health counseling andmedication to address certain conditions that impeded her ability to safely parent thechild. The court noted that, at the time of the fact-finding hearing, respondent had beenin treatment since December 2012, but that her attendance was inconsistent and, duringthe preceding years, she resisted treatment; when she did enroll, she was dischargedtwice based on her poor attendance. Similarly, the court credited the testimony ofpetitioner's caseworker that respondent was combative with the caseworkers, oftencancelled supervised visits with the child, did not consistently attend parenting classes,left the state for over two months because she needed a break and, with some exceptions,did not keep petitioner apprised of her address and telephone number. Petitioner'scaseworker explained that, without an address, the caseworker could not inspect theresidence to confirm that it was appropriate for visits, and this prevented respondent frombeing able to enjoy unsupervised visitation with the child. Given respondent's failure toconsistently comply with the conditions imposed to address the issues preventing herfrom regaining custody of the child, and according the requisite deference to FamilyCourt's factual findings, we find that the record supports its determination thatrespondent permanently neglected the child (see Matter of Kapreece SS. [Latasha SS.], 128 AD3d 1114, 1116; Matter of Aniya L.[Samantha L.], 124 AD3d 1001, 1004 [2015], lv denied 25 NY3d 904[2015]; Matter of Samuel DD. [Margaret DD.], 123 AD3d at 1162; Matter ofAngelo AA. [Tashina DD.], 123 AD3d at 1249).
McCarthy, J.P., Devine and Clark, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *:Given the representationin petitioner's brief that there has been no further action, a concern is raised as to whetherpetitioner complied with its statutory obligation to submit a report to Family Court as torespondent's compliance with the suspension order (see Family Ct Act§ 633 [d]) and whether a permanency plan has been established, as required(see Matter of Anthony WW.[Karen WW.], 103 AD3d 941, 943 [2013], lv denied 21 NY3d 857[2013]). If not, we encourage the parties to directly address this matter.