State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 10, 2014 514797
________________________________
In the Matter of MARISSA O.,
Alleged to be a Permanently
Neglected Child.
SARATOGA COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Respondent;
GRACE NN.,
Respondent.
ALEXANDRA G. VERRIGNI, as
Attorney for the Children,
Appellant.
(Proceeding No. 1)
________________________________ MEMORANDUM AND ORDER
In the Matter of ERICA O.,
Alleged to be a Permanently
Neglected Child.
SARATOGA COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Respondent;
GRACE NN.,
Respondent.
ALEXANDRA G. VERRIGNI, as
Attorney for the Children,
Appellant.
(Proceeding No. 2)
________________________________
-2- 514797
In the Matter of JOSHUA O.,
Alleged to be a Permanently
Neglected Child.
SARATOGA COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Respondent;
GRACE NN.,
Respondent.
ALEXANDRA G. VERRIGNI, as
Attorney for the Children,
Appellant.
(Proceeding No. 3.)
__________________________________
Calendar Date: May 27, 2014
Before: Lahtinen, J.P., McCarthy, Garry, Lynch and Clark, JJ.
__________
Alexandra G. Verrigni, Rexford, attorney for the children,
appellant.
Karen D'Andrea, Saratoga County Department of Social
Services, Ballston Spa, for Saratoga County Department of Social
Services, respondent.
Justin C. Brusgul, Voorheesville, for Grace NN.,
respondent.
__________
-3- 514797
Lynch, J.
Appeal from an order of the Family Court of Saratoga County
(Cortese, J.), entered September 12, 2011, which dismissed
petitioner's applications, in three proceedings pursuant to
Social Services Law § 384-b, to adjudicate the subject children
to be permanently neglected.
Respondent is the mother of nine children. In October
2006, Schenectady County Family Court (Powers, J.) determined
that respondent neglected five of her children, based in part on
its finding that she failed to protect two of her daughters from
sexual abuse by their older male sibling. The case was
transferred to Saratoga County and, in November 2006, Family
Court (Abramson, J.) issued an order placing respondent under
petitioner's supervision and an order of protection that, among
other things, directed respondent to prevent the abusive sibling
from having any contact with five of respondent's minor children.
In March 2008, after it was determined that two of the minor
children were again abused by their older sibling while in
respondent's care, she consented to an order placing four of the
children in foster care.
In June 2010, petitioner commenced these proceedings to
terminate respondent's parental rights to three of her children.
Following a lengthy hearing, Family Court issued a comprehensive
written decision wherein it determined that petitioner did not
prove that respondent failed to plan for the future of the
subject children. The attorney for the children now appeals.
As relevant here, "[a]n agency seeking to establish
permanent neglect must prove that it made diligent efforts to
strengthen the parent-child relationship and that, despite those
efforts, the parent has failed to . . . substantially plan for
the child[ren's] future [for the requisite time period]" (Matter
of Tatianna K. [Claude U.], 79 AD3d 1184, 1185 [2010]; see Social
Services Law § 384-b [7] [a]). To "substantially plan," a parent
must take "meaningful steps" towards correcting the problems that
led to the child's placement in foster care (Matter of Neal TT.
[Deborah UU.], 97 AD3d 869, 871 [2012] [internal quotation marks
and citations omitted]; accord Matter of Tatianna K. [Claude U.],
-4- 514797
79 AD3d at 1185-1186). A parent may demonstrate such planning by
"'utilizing available medical, social and psychological services
as needed and providing a stable and adequate home environment'"
(Matter of Cory N. [Jessica O.], 111 AD3d 1079, 1081 [2013],
quoting Matter of Tatianna K. [Claude U.], 79 AD3d at 1185). It
is the petitioner's burden to establish a parent's failure to
plan by "clear and convincing evidence" (Matter of Victor WW.
[Salma XX.], 96 AD3d 1281, 1282 [2012]) and "the adequacy of the
[parent's] plan must not be evaluated with reference to
unrealistically high standards" (Matter of Leon RR., 48 NY2d 117,
125 [1979]; see Matter of Tatianna K. [Claude U.], 79 AD3d at
1186). Family Court found that petitioner did not prove "by
clear and convincing evidence" that respondent failed to plan for
her children's future. "This Court accords great deference to
such determinations . . . and [we] will disturb its factual
findings only if they lack a sound and substantial basis in the
record" (Matter of Victor WW. [Salma XX.], 96 AD3d at 1282
[internal quotation marks and citations omitted]).
The record on appeal reflects that when respondent's
children were placed in foster care, petitioner directed her to
continue and complete recommended counseling and treatment,
including sexual victimization and domestic violence treatment.
She was also directed to participate in psychological, cognitive
and behavioral evaluations, to attend anger management and
parenting classes, and to cooperate with all recommended
referrals. The attorney for the children contends that Family
Court's determination was flawed because it did not consider
respondent's inability to benefit from the services provided or
her failure to acknowledge that her children had been abused. We
disagree.
While it must be recognized that respondent initially had
some difficulty with adjusting to petitioner's supervision,
Family Court noted that she attended all of the visits with her
children, all of the permanency planning meetings, and
participated in all recommended counseling and treatment. The
court also noted that, during the two-year period prior to the
fact-finding hearing, respondent had remained employed at the
same job and found an apartment without petitioner's assistance.
Importantly, both respondent's and the children's treatment
-5- 514797
providers testified that respondent, over time, was able to
acknowledge the role she played in allowing her children to be
abused.
While respondent may be an imperfect parent who lacks
advantages and is burdened by her limited means, in our view, the
record reveals that she used available resources to take
"meaningful steps to correct the conditions that led to the
[children's] removal" (Matter of Tatianna K. [Claude U], 79 AD3d
at 1186). Accordingly, giving deference to Family Court's
credibility determinations (see Matter of Summer G. [Amy F.], 93
AD3d 959, 961 [2012]), we find that there was a sound and
substantial basis for its finding that petitioner failed to
submit clear and convincing evidence that respondent did not
substantially plan for her children's future (see Matter of
Victor WW. [Salma XX.], 96 AD3d at 1284).
The attorney for the children also contends that Family
Court improperly relied on a court-ordered evaluation that was
completed in order to assess whether respondent was unable to
care for her children "by reason of mental illness or mental
retardation" (Social Services Law § 384-b [4] [c]; see Social
Services Law § 384-b [6] [e]). Contrary to the attorney for the
children's restrictive reading, however, the appointment order
specified that Jacqueline Bashkoff, a psychologist, should
conduct a mental health evaluation and "any further evaluations
[she] deemed necessary." As such, Bashkoff was authorized to
address whether respondent’s ability to care for her children was
impaired (compare Matter of Anthony WW. [Michael WW.], 86 AD3d
654, 657 n 5 [2011], lv denied 17 NY3d 897 [2011]). Moreover,
although petitioner had alternatively alleged that respondent was
unable to care for her children by reason of mental illness or
mental retardation (see Social Services Law § 384-b [4] [c]),
petitioner withdrew this claim and Family Court expressly stated
that Bashkoff's opinion, while pertinent to respondent's
cognitive abilities, was not "useful . . . with regard to the
issues of permanent neglect." The claims made on behalf of the
attorney for the children are thus without merit.
Lahtinen, J.P., McCarthy, Garry and Clark, JJ., concur.
-6- 514797
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court