State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 11, 2014 517655
________________________________
In the Matter of ANGELO AA.
and Another, Alleged to be
Permanently Neglected
Children.
TOMPKINS COUNTY DEPARTMENT OF
SOCIAL SERVICES, MEMORANDUM AND ORDER
Respondent;
TASHINA DD.,
Appellant.
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Calendar Date: October 15, 2014
Before: Lahtinen, J.P., McCarthy, Rose, Lynch and Clark, JJ.
__________
Pamela B. Bleiwas, Ithaca, for appellant.
Keith Cassidy, Tompkins County Department of Social
Services, Ithaca, for respondent.
Robin A. Masson, Ithaca, attorney for the children.
__________
McCarthy, J.
Appeal from an order of the Family Court of Tompkins County
(Rowley, J.), entered August 1, 2013, which granted petitioner's
application, in a proceeding pursuant to Social Services Law §
384-b, to adjudicate the subject children to be permanently
neglected children, and terminated respondent's parental rights.
Respondent is the mother of Angelo AA. (born in 2010) and
Ryan CC. (born in 2007). Petitioner commenced a neglect
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proceeding against respondent, which resulted in the removal of
the children from her care. She consented to a finding of
neglect. More than a year later, petitioner commenced this
permanent neglect proceeding seeking to terminate respondent's
parental rights. After a fact-finding hearing, Family Court
adjudicated the children to be permanently neglected by
respondent. Following a dispositional hearing, the court
terminated respondent's parental rights and freed the children
for adoption. Respondent appeals.
Family Court properly found that petitioner made diligent
efforts to encourage and strengthen the parent-child
relationship. As a threshold matter on this petition to
terminate parental rights on the ground of permanent neglect,
petitioner was required to prove by clear and convincing evidence
that it made diligent efforts to strengthen the parent-child
relationship and encourage family reunification (see Social
Services Law § 384-b [7] [a]; Family Ct Act § 614 [1] [c]).
Diligent efforts include, among other things, making arrangements
for visitation with the children, keeping the parent apprised of
the children's development, and providing a range of services to
address the problems that led to the children's removal or are
preventing the children's discharge from care (see Social
Services Law § 384-b [7] [f]; Matter of Hailey ZZ. [Ricky ZZ.],
19 NY3d 422, 429 [2012]). An agency need only make reasonable
efforts, and it will be deemed to have fulfilled its obligation
if appropriate services are offered but the parent refuses to
engage in them or does not progress (see Matter of Sheila G., 61
NY2d 368, 385 [1984]; Matter of James X., 37 AD3d 1003, 1006
[2007]).
Here, petitioner created a service plan that identified
three main issues preventing reunification: respondent's
aggressive behavior toward the children and poor parenting
skills, her drug dependency, and her propensity for involving
herself in relationships that include domestic violence.
Petitioner arranged regular supervised visitation that progressed
to include some portions of each visit being unsupervised.
Petitioner referred respondent to parenting and anger management
classes. Although respondent completed those classes, she later
yelled at her child during a supervised visit and engaged in some
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anger-related behavior toward adults that required police
involvement. Petitioner referred respondent to the Advocacy
Center, where she enrolled in and completed a domestic violence
awareness class and participated in a women's empowerment group.
Despite these services, respondent continued to involve herself
with men who had a history of domestic abuse toward her and other
women. The service plan stated that respondent was to continue
her mental health counseling, indicating that a referral was not
necessary because respondent was already engaged in such
counseling.
Respondent enrolled in the Family Treatment Court program
to address her substance abuse dependency. After respondent
tested positive for marihuana multiple times, petitioner referred
her to an inpatient drug treatment program. Respondent denied
having a problem and left the program early, against medical
advice. She tested positive again, enrolled in and completed a
different inpatient drug treatment program, then entered
outpatient treatment. At the outpatient treatment facility, she
was enrolled in a program that deals with both substance abuse
and past emotional trauma. The licensed clinical social worker
who ran a group program at the facility and conducted one-on-one
counseling with respondent testified that respondent often failed
to actively participate in group sessions and was eventually
dropped from the program due to poor attendance at group and
individual sessions. Respondent had stated to the social worker
that she no longer wanted those services. Respondent did
immediately enroll in another outpatient drug program, but had
not completed it by the time the petition was filed. Respondent
was removed from the Family Treatment Court program for failing
to progress within the time parameters. Contrary to the service
plan, respondent did not continue her mental health counseling
after she finished inpatient drug treatment (compare Matter of
Jyashia RR. [John VV.], 92 AD3d 982, 983 [2012]).
Respondent argues that petitioner should have referred her
to services designed to address her past sexual abuse. Family
Court credited the social worker's testimony that the outpatient
drug treatment program was designed for people with dual
diagnoses of substance abuse and emotional trauma, the program
addresses both components and teaches coping mechanisms, and
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respondent first needed to get stabilized before they could delve
deeply into the sexual abuse trauma so as to avoid a drug
relapse. Respondent also argues that petitioner failed to make
diligent efforts because it did not refer her for a psychological
evaluation with IQ testing as initially set forth in her service
plan, and it took many months to obtain a psychosocial
evaluation. Petitioner's caseworker explained that she
determined that IQ testing was not necessary because respondent
seemed to understand what she was told, even if she did not agree
with it or follow through. As for the evaluations, similar
information was obtained from the records of a psychiatrist at
one of the inpatient programs. Additionally, the social worker
testified that, after a preliminary mental health evaluation, the
mental health organization relayed that it had no other programs
that would be necessary or better than the dual diagnosis program
in which respondent was engaged at the outpatient drug treatment
facility.
Respondent did successfully complete some classes and
improved her parenting skills, but she continued to be involved
with men who committed acts of domestic violence, she used
marihuana, she did not continue in mental health counseling and
she did not complete substance abuse treatment. Thus, Family
Court properly found that petitioner made diligent efforts and,
despite those efforts, respondent permanently neglected her
children (see Matter of Chorus SS. [Elatisha SS.], 93 AD3d 1097,
1098 [2012], lv denied 19 NY3d 807 [2012]).
Family Court did not deny respondent due process by
precluding her expert witness. The admissibility of expert
testimony is generally left to the trial court's discretion (see
People v Williams, 20 NY3d 579, 584 [2013]; Hurrell-Harring v
State of New York, 119 AD3d 1052, 1053 [2014]). While the offer
of proof stated that the expert would testify about a more
current method of dual diagnosis treatment, this information was
not relevant to the diligent efforts issue; the question was
whether petitioner offered or referred respondent to appropriate
services, not whether some better service might have been
available (see Matter of Michael Anthony Vincent J., 253 AD2d
619, 621-622 [1998], lv dismissed 92 NY2d 1026 [1998]).
Accordingly, the court did not abuse its discretion in precluding
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the expert's testimony.
Lahtinen, J.P., Rose, Lynch and Clark, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court