State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 16, 2014 517283
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In the Matter of CARTER A.,
Alleged to be a Permanently
Neglected Child.
CORTLAND COUNTY DEPARTMENT OF
SOCIAL SERVICES, MEMORANDUM AND ORDER
Respondent;
COURTNEY QQ.,
Appellant.
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Calendar Date: September 11, 2014
Before: Peters, P.J., Lahtinen, Stein, Garry and Devine, JJ.
__________
Kelly M. Corbett, Fayetteville, for appellant.
Kathleen A. Sullivan, Cortland County Department of Social
Services, Cortland, for respondent.
Donna C. Chin, Ithaca, attorney for the child.
__________
Garry, J.
Appeal from an order of the Family Court of Cortland County
(Campbell, J.), entered July 22, 2013, which granted petitioner's
application, in a proceeding pursuant to Social Services Law §
384-b, to adjudicate the subject child to be permanently
neglected, and terminated respondent's parental rights.
Respondent was 15 years old when she gave birth to the
subject child in August 2011. The child was removed from her
care in October 2011 and, following a brief placement with the
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maternal grandmother, was placed in January 2012 with a foster
family, with whom he still resides. In August 2012, the child
was adjudicated to be neglected and, in October 2012, petitioner
commenced this permanent neglect proceeding. Following fact-
finding and dispositional hearings, Family Court adjudicated the
child to be permanently neglected and terminated respondent's
parental rights. Respondent appeals.
We agree with Family Court that petitioner complied with
its threshold statutory obligation to exercise diligent efforts
to encourage and strengthen the relationship between respondent
and the child (see Social Services Law § 384-b [7] [a]; Matter of
Star Leslie W., 63 NY2d 136, 142 [1984]). To satisfy this duty,
petitioner must make practical and reasonable efforts to
ameliorate the problems preventing reunification and strengthen
the family relationship by such means as assisting the parent
with visitation, providing information on the child's progress
and development, and offering counseling and other appropriate
educational and therapeutic programs and services (see Matter of
Thomas JJ., 20 AD3d 708, 709-710 [2005]; Matter of Jessica UU.,
174 AD2d 98, 100 [1992]). Here, petitioner referred respondent
to services, including parenting classes, preventive services,
substance abuse evaluations and treatment, domestic violence
education, family counseling services and mental health
evaluations, as well as individual meetings with petitioner's
caseworker in which, among other things, respondent was
encouraged to terminate her relationship with the child's father,
who had a history of violence against respondent and others.
Petitioner kept respondent informed of the child's progress
through both reports and individual meetings, facilitated
visitation several times each week, and provided the assistance
and supervision of a parenting educator. When respondent was
unable to arrange counseling at the facility of her choice due to
an outstanding billing issue, petitioner's caseworker referred
her to an alternate facility, provided bus passes, and offered to
drive respondent to her appointments.
Respondent contends that these services were inadequate
because of her youth, and that she should have been placed in
foster care with the child, rather than being directed to live in
her mother's household, as her mother failed to provide her with
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transportation and other support, and the conflict and
instability in that household interfered with her progress toward
maturity. As Family Court noted, however, respondent was not the
subject of this proceeding, and there is no statutory authority
by which either petitioner or the court can place a respondent in
a permanent neglect proceeding in foster care.1 Further, even
assuming such a placement had been legally feasible, the record
reveals that many of the problems that respondent now contends
made her mother's household unsuitable resulted directly from
respondent's own behavior problems, including ongoing substance
abuse, truancy, criminal conduct, and refusal to abide by
household rules or terminate her relationship with the child's
father despite mutual orders of protection arising from prior
domestic violence incidents. As these barriers to reunification
were largely of respondent's own making, it does not appear
likely that placement in foster care would have ameliorated them,
nor – given the persistence and severity of respondent's
misconduct – that petitioner or the court would have found that
placing respondent in foster care with the child would have
served the child's best interests.
Respondent further contends that petitioner should have
sought a court order for inpatient substance abuse treatment as
recommended by respondent's substance abuse counselor. The
counselor testified that she informed petitioner that she
believed respondent needed such treatment; however, she also
testified that she did not ask petitioner to obtain a court order
because respondent had flatly refused to consider inpatient
treatment. Respondent confirmed this refusal in her testimony.
Petitioner fulfilled its duty by repeatedly seeking to involve
1
In 2012, respondent was the subject of separate
proceedings commenced by her school in which Family Court
adjudicated her to be a person in need of supervision
(hereinafter PINS). Although these proceedings could have
resulted in foster care placement, this did not occur; in accord
with the recommendation of the Probation Department, respondent
was instead ultimately placed on probation. Notably, petitioner
was not a party to the PINS proceeding, and thus did not exert
any manner of control over respondent's placement.
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respondent in substance abuse evaluation and treatment, and was
not required to guarantee respondent's success or to use
compulsion to overcome her resistance (see Matter of Sheila G.,
61 NY2d 368, 385 [1984]; Matter of James WW. [Tara XX.], 100 AD3d
1276, 1277-1278 [2012], lv denied 20 NY3d 1057 [2013]).
Next, petitioner proved by clear and convincing evidence
that, although able to do so, respondent failed for the requisite
time period to plan for the future of the child (see Social
Services Law § 384-b [7] [a]). During the 12 months before the
petition was filed, respondent made few efforts to avail herself
of the offered services and completed almost none of them. She
enrolled in one of two required parenting classes, but failed to
complete it. She maintained contact with the child's father
despite orders of protection, which were violated at least twice.
She failed to reside with her mother and stepfather as directed
or to maintain stable housing elsewhere, moving in and out of
various households including those of the child's father and his
relatives. She stopped attending school in February 2012 and
later agreed to enroll in summer school, but attended so
infrequently that she was told not to return. Shortly after
school reopened in September, she was suspended after being found
in possession of another student's prescription medication. This
incident also violated her probation and led to criminal charges
that were pending at the time of the fact-finding hearing.
Separate criminal charges were also pending against her after a
shoplifting incident. She was discharged unsuccessfully from
outpatient substance abuse treatment after repeatedly testing
positive for marihuana; nevertheless, she testified at the fact-
finding hearing that she continued to believe that she was not so
addicted as to require inpatient treatment. Despite petitioner's
assistance with referrals and transportation, respondent delayed
in engaging in mental health services, and was not evaluated by a
prescribing psychiatrist until shortly before the permanent
neglect proceeding was commenced. The only service with which
respondent consistently and willingly engaged was visitation with
the child. However, she failed to consistently comply with
requirements such as bringing along a stocked diaper bag except
when prompted by her mother, and she never progressed beyond
supervised visitation. Clear and convincing record evidence
supports Family Court's finding that respondent failed to make
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meaningful changes to address the issues that led to the child's
removal and, thus, failed to plan for his future (see Matter of
Jah'Meir G. [Eshale G.], 112 AD3d 1014, 1015-1016 [2013], lv
denied 22 NY3d 863 [2014]; Matter of Arianna BB. [Tracy DD.], 110
AD3d 1194, 1196-1197 [2013], lv denied 22 NY3d 858 [2014]; Matter
of Jayde M., 36 AD3d 1168, 1169-1170 [2007], lv denied 8 NY3d 809
[2007]).
Finally, Family Court did not abuse its discretion in
denying respondent's request for a suspended judgment (see Family
Ct Act §§ 631 [b]; 633). The court may grant this temporary
remedy following an adjudication of permanent neglect if it finds
that it would be in the child's best interests to give the parent
a brief grace period in which to demonstrate his or her fitness
to care for the child and improve parenting skills (see Matter of
Shania D. [Peggy E.], 82 AD3d 1513, 1513-1514 [2011]; Matter of
Clifton ZZ. [Latrice ZZ], 75 AD3d 683, 683-684 [2010]). The sole
concern at disposition is the child's best interests, and there
is no presumption that any disposition, including reunification
with the parent, will promote such interests (see Matter of
Nevaeh SS. [Valerie L.], 68 AD3d 1188, 1189 [2009]; Matter of
Joshua BB., 27 AD3d 867, 869 [2006]). In the final months of the
dispositional phase, respondent did take some commendable steps
toward maturity following an incident that occurred in January
2013 that involved her psychiatric hospitalization. She had been
found to be in possession of drug paraphernalia at school, and
she admitted that she had been using and selling synthetic
marihuana to avoid detection in drug tests. In the aftermath of
this incident, which respondent described as frightening, she
completed a drug evaluation, engaged in several sessions of
outpatient drug treatment and, during the two months preceding
the conclusion of the dispositional hearing, consistently tested
negative for conventional drugs and synthetic marihuana. She
completed teen parenting, nutrition and domestic violence
programs, finished a GED program with good grades, and was
preparing to take the GED exam. She also acquired and kept a job
and continued regular visits with the child. However, Family
Court noted the last-minute nature of these laudable
accomplishments, and further observed that respondent's inability
to maintain stable relationships and housing had not improved.
Shortly before the dispositional hearing began, respondent
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married a 20-year-old man after a brief relationship, and moved
with him into his parents' house. The marriage failed within a
few months, amidst allegations that respondent had been
unfaithful to her new husband and had otherwise behaved badly
toward him. The husband's parents asked respondent to leave
their home, and at the close of the dispositional hearing, she
was again living with her mother.
If respondent's request for a suspended judgment had been
granted, her plan was for the child to remain in foster care for
another year to give her additional time to mature and become
capable of caring for him. At the time of disposition, the child
was approximately two years old and was closely bonded with the
foster parents, with whom he had resided for all but the first
few months of his life. Given their desire to adopt him, and the
belated and incomplete nature of respondent's improvement
following her long and troubled history, we find no error in
Family Court's determination that freeing the child for adoption
was in his best interests (see Matter of Madalynn I. [Katelynn
J.], 111 AD3d 1205, 1207 [2013]; Matter of Angelina BB. [Miguel
BB.], 90 AD3d 1196, 1198 [2011]).
Peters, P.J., Lahtinen, Stein and Devine, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court