State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 4, 2014 516563
________________________________
In the Matter of SAMUEL DD.,
Alleged to be a Permanently
Neglected Child.
ALBANY COUNTY DEPARTMENT FOR
CHILDREN, YOUTH AND MEMORANDUM AND ORDER
FAMILIES,
Respondent;
MARGARET DD.,
Appellant.
________________________________
Calendar Date: October 17, 2014
Before: Stein, J.P., McCarthy, Garry, Lynch and Devine, JJ.
__________
Bruce E. Knoll, Albany, for appellant.
Jeffrey G. Kennedy, Albany County Department for Children,
Youth and Families, Albany, for respondent.
Jeffrey Berkun, Albany, attorney for the child.
__________
Stein, J.P.
Appeals from two orders of the Family Court of Albany
County (M. Walsh, J.), entered July 13, 2012 and March 18, 2013,
which granted petitioner's application, in a proceeding pursuant
to Social Services Law § 384-b, to adjudicate Samuel DD. to be a
permanently neglected child, and terminated respondent's parental
rights.
Respondent is the mother of Samuel DD. (born in 2001). In
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May 2009, petitioner commenced a Family Ct Act article 10
proceeding to adjudicate Samuel to be a neglected child and
alleged, among other things, that respondent had educationally
neglected the child and failed to provide him with necessary
medical treatment, which resulted in the child exhibiting severe
behavioral issues at school. Additionally, petitioner alleged
that respondent's own mental health issues prevented her from
appropriately caring for the child. Shortly thereafter, the
child was removed from respondent's custody and placed in foster
care, where he has since remained. In July 2009, respondent
agreed to a reunification plan proposed by petitioner. Although
respondent initially complied with the evaluative aspects of the
plan, she ultimately refused to follow the recommendations that
resulted from the evaluations. At a subsequent Family Court
appearance, respondent opposed the reunification plan,
particularly the recommendation that the child receive medication
for his mental health conditions.
Following a fact-finding hearing, Family Court adjudicated
the child to be neglected. The parties thereafter stipulated to
an order of disposition in March 2010 which, among other things,
placed respondent under petitioner's supervision for one year,
continued the child's placement with petitioner and directed that
the child remain in his current residential placement.1 The
dispositional order also directed that the child be provided with
a specialized classroom setting and mental health treatment,
including counseling. It further required respondent to undergo
a mental health evaluation, receive treatment and participate in
family counseling. Additionally, Family Court ordered weekly
supervised visitation between respondent and the child.
As a result of respondent's refusal to comply with the
terms of the dispositional order, petitioner commenced this
permanent neglect proceeding. Following a fact-finding hearing,
Family Court adjudicated the child to be permanently neglected
and, after a subsequent dispositional hearing, terminated
respondent's parental rights. Respondent now appeals from both
1
On appeal, this Court affirmed Family Court's neglect
order (Matter of Samuel DD. [Margaret DD.], 81 AD3d 1120 [2011]).
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the fact-finding and dispositional orders.2
We affirm. "To establish permanent neglect, petitioner was
required to prove by clear and convincing evidence that it made
diligent efforts to strengthen the parent-child relationship and
that, despite those efforts, [respondent] has failed
to . . . substantially plan for the child[]'s future for one year
after the agency has been charged with the child[]'s care,
although [she was] physically and financially able to do so"
(Matter of Alister UU. [Angela VV.], 117 AD3d 1137, 1138 [2014]
[internal quotation marks and citations omitted]; see Social
Services Law § 384-b [7] [a]; Matter of Marissa O. [Grace NN.],
119 AD3d 1097, 1098 [2014]; Matter of Jayden J. [Johanna K.], 100
AD3d 1207, 1208 [2012], lv denied 20 NY3d 860 [2013]). As to the
threshold inquiry of whether petitioner satisfied its statutory
duty of strengthening the parent-child relationship with diligent
efforts (see Matter of Star Leslie W., 63 NY2d 136, 142 [1984]),
the record here amply demonstrates the efforts made by petitioner
to assist respondent in overcoming the obstacles to her
reunification with the child since July 2009, when the child was
removed from respondent's custody and placed in foster care.
Specifically, petitioner developed a two-step plan towards
reunification. The first step was aimed at evaluating the
child's educational needs, as well as the mental health needs of
respondent and the child, while maintaining the parental
relationship through regular visitation. To that end,
petitioner, among other things, arranged for a 45-day evaluation
of the child, meetings with the child's school district to plan
for the child's education needs and a psychological evaluation of
respondent.
2
Respondent's appeal from the July 13, 2012 order must be
dismissed, as no appeal as of right lies from an order of fact-
finding in a permanent neglect proceeding (see Matter of Jah'Meir
G. [Eshale G.], 112 AD3d 1014, 1015 [2013], lv denied 22 NY3d 863
[2014]; Matter of Kayden E. [Luis E.], 111 AD3d 1094, 1095 n 2
[2013], lv denied 22 NY3d 862 [2014]). However, respondent's
appeal from the dispositional order brings up for review the
fact-finding order (see id.).
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The plan's second step required, among other things,
respondent's attendance and participation in follow-up meetings
to discuss the recommendations made as a result of the
evaluations and to develop an overall service plan. Once the
service plan was in place, respondent was required to undergo
mental health treatment and participate in family counseling. In
this regard, petitioner made arrangements for the recommended
services and repeatedly attempted to convince respondent to
engage in those services. Additionally, petitioner provided the
child with weekly counseling in accordance with the professional
recommendations made following the child's diagnosis of
hyperactivity disorder and oppositional defiance disorder.
Petitioner also notified respondent of the permanency planning
meetings and service plan reviews and reminded respondent about
meetings with the school district regarding the child. At all
relevant times, petitioner arranged weekly supervised visitation
between the child and respondent and provided financial
assistance to respondent to facilitate those visits. In view of
the extensive services provided by petitioner, we discern no
basis to disturb Family Court's finding that petitioner made the
requisite diligent efforts that were appropriately tailored to
respondent's circumstances to encourage and strengthen the
parent-child relationship3 (see Social Services Law § 384-b [7]
[a]; Matter of Alister UU. [Angela VV.], 117 AD3d at 1138; Matter
of Asianna NN. [Kansinya OO.], 119 AD3d 1243, 1244-1245 [2014],
lv denied ___ NY3d ___ [Oct. 23, 2014]; Matter of Cory N.
[Jessica O.], 111 AD3d 1079, 1080 [2013]).
3
We reject respondent's argument that petitioner did not
make diligent efforts because it failed to investigate possible
"religious-based" therapy. While respondent did make some
inquiry as to the possibility of such therapy, the hearing
testimony reveals that petitioner did not have contacts for such
services and, although the order of supervision allowed
respondent to select her own counselor, she never proposed a
possible "religious-based" provider. Moreover, respondent
changed churches and refused to provide petitioner's caseworkers
with a release to enable them to obtain information regarding the
availability of appropriate faith-based services to meet her
needs.
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The record reflects that, notwithstanding petitioner's
diligent efforts, respondent continuously refused to acknowledge
the reasons and conditions that led to the child's placement in
petitioner's custody and supports Family Court's determination
that, respondent "refused by failing to engage in key services
designed to overcome [the] barriers to reunification," thereby
failing to plan for the child's future despite being physically
and financially able to do so. Although respondent attended most
of the scheduled supervised visits with the child and exhibited
appropriate behavior during those visits, following some initial
evaluations, she refused to discuss the evaluative
recommendations or participate in recommended counseling services
or mental health treatment for herself or the child, including
family therapy. Additionally, she missed several scheduled
permanency planning meetings and service plan reviews.
Overall, respondent exhibited a consistent failure to
cooperate with petitioner from the time the child was removed
from her custody and failed to make any meaningful effort toward
addressing the issues that led to the child's removal in the
first instance (see Matter of Asianna NN. [Kansinya OO.], 119
AD3d at 1247). In fact, she affirmatively expressed to
caseworkers that she would not comply with certain aspects of the
dispositional order. Thus, petitioner established by clear and
convincing evidence that respondent permanently neglected the
child by failing to plan for his future for a period of more than
one year (see Matter of Carter A. [Courtney QQ.], 121 AD3d 1217,
1219-1220 [2014]; Matter of Chorus SS. [Elatisha SS.], 93 AD3d
1097, 1098 [2012], lv denied 19 NY3d 807 [2012]).
As to disposition, we are unpersuaded that Family Court
should have granted a suspended judgment in lieu of terminating
respondent's parental rights (see Family Ct Act §§ 631 [b]; 633;
Matter of Carter A. [Courtney QQ.], 121 AD3d at 1220).
"'Following an adjudication of permanent neglect, the sole
concern at a dispositional hearing is the best interests of the
child and there is no presumption that any particular
disposition, including the return of a child to a parent,
promotes such interests'" (Matter of Johanna M. [John L.], 103
AD3d 949, 951 [2013], lv denied 21 NY3d 855 [2013], quoting
Matter of Angelica VV., 53 AD3d 732, 733 [2008]; see Family Ct
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Act § 631; Matter of Star Leslie W., 63 NY2d at 147-148).
Initially, we reject respondent's argument that Family Court
erred in failing to conduct an in camera interview with the
child, as none was requested by any of the parties and such
interview is not statutorily required (see Social Services Law §
384-b [3] [k]). In any event, the attorney for the child
adequately conveyed to Family Court the child's ambivalence and
uncertainty regarding his wishes for the future.
With respect to the merits of the dispositional
determination, there is no doubt that respondent and the child
enjoy a loving relationship despite their limited contact during
the child's placement in foster care. However, it is also
evident that respondent failed to take advantage of the numerous
services and various forms of assistance offered by petitioner,
and made minimal efforts to ameliorate the problems that led to
the child's removal from her care. Respondent also had a history
of unstable housing and refused to divulge her current address to
petitioner's caseworkers. Moreover, at the time of disposition,
the child had been in foster care for four years and was placed
in a therapeutic foster home where his special needs were being
addressed. Considering the circumstances and affording deference
to Family Court's choice of dispositional alternatives, there is
a sound and substantial basis in the record for its determination
that termination of respondent's parental rights was in the
child's best interests, and we, therefore, decline to disturb it
(see Matter of Jayden T. [Amy T.], 118 AD3d 1075, 1076 [2014];
Matter of Madalynn I. [Katelynn J.], 111 AD3d 1205, 1207 [2013];
Matter of Cory N. [Jessica O.], 111 AD3d at 1082).4
4
While there is some merit to respondent's contention that
Family Court should not have adopted seemingly inconsistent
concurrent permanency goals of freeing the child for adoption and
returning him to her custody (see Matter of Julian P. [Melissa
P.–Zachary L.], 106 AD3d 1383, 1384 [2013]; Matter of Dakota F.
[Angela F.], 92 AD3d 1097, 1098-1099 [2012]), respondent did not
appeal from the permanency orders setting forth such goals (see
e.g. id.). In any event, we are unconvinced that, under the
circumstances here, any such error constitutes a basis to disturb
either Family Court's determination that respondent permanently
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Respondent's remaining contentions have been considered and
are found to be lacking in merit.
McCarthy, Garry, Lynch and Devine, JJ., concur.
ORDERED that the appeal from the July 13, 2012 order is
dismissed, without costs.
ORDERED that the March 18, 2013 order is affirmed, without
costs.
ENTER:
Robert D. Mayberger
Clerk of the Court
neglected the child or the resulting disposition.