MatterofDestinyEE. ( 2014 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 4, 2014 516715
________________________________
In the Matter of DESTINY EE.,
Alleged to be a Permanently
Neglected Child.
ULSTER COUNTY DEPARTMENT
OF SOCIAL SERVICES,
Respondent;
KAREN FF.,
Appellant.
(Proceeding No. 1.)
________________________________ MEMORANDUM AND ORDER
In the Matter of NIGAL FF.,
Alleged to be a Permanently
Neglected Child.
ULSTER COUNTY DEPARTMENT
OF SOCIAL SERVICES,
Respondent;
KAREN FF.,
Appellant.
(Proceeding No. 2.)
________________________________
Calendar Date: October 8, 2014
Before: Peters, P.J., Lahtinen, Garry, Rose and Lynch, JJ.
__________
Ted J. Stein, Woodstock, for appellant.
-2- 516715
Heather D. Harp, Ulster County Department of Social
Services, Kingston, for respondent.
Marian Cocose, Bearsville, attorney for the children.
Daniel Gartenstein, Kingston, attorney for the child.
__________
Rose, J.
Appeals from two orders of the Family Court of Ulster
County (Mizel, J.), entered April 10, 2013 and April 11, 2013,
which granted petitioner's applications, in two proceedings
pursuant to Social Services Law § 384-b, to adjudicate the
subject children to be permanently neglected, and terminated
respondent's parental rights.
Respondent is the mother of Brandon EE., Nigal FF. and
Destiny EE. (born in 1997, 2000 and 2003, respectively).
Brandon and Nigal were first determined to be neglected and were
placed in petitioner's care in 2001, based on a finding that
Nigal's father had sexually abused Brandon. Although respondent
regained custody in 2003, in 2007 she consented to findings of
neglect and placement of all three children with petitioner after
she allowed Nigal to travel out-of-state to spend the summer with
his father.1 Petitioner commenced these proceedings in 2009
alleging that Nigal and Destiny (hereinafter the children) were
permanently neglected and seeking to terminate respondent's
parental rights.2 After lengthy fact-finding and dispositional
1
We affirmed an order extending the placement of the
children that changed the permanency goal from "return to parent"
to "placement for adoption" (Matter of Destiny EE. [Karen FF.],
82 AD3d 1292 [2011]).
2
We affirmed the denial of respondent's motion to vacate
the 2007 neglect findings and dismiss the petitions for permanent
neglect (Matter of Destiny EE. [Karen FF.], 90 AD3d 1437 [2011],
-3- 516715
hearings, Family Court granted the petitions. Respondent
appeals, primarily contending that petitioner failed to exercise
diligent efforts to reunite her with the children.3
As relevant here, in order 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, the
parent has failed to . . . substantially plan for the
child[ren]'s future for one year after the agency has been
charged with the child[ren]'s care" (Matter of Tatianna K.
[Claude U.], 79 AD3d 1184, 1185 [2010]; accord Matter of Summer
G. [Amy F.], 93 AD3d 959, 960 [2012]; see Social Services Law
§ 384-b [7] [a]). Diligent efforts include, among other things,
"creating a service plan that offers appropriate services to the
parents to resolve the problems preventing return of the
child[ren], making suitable arrangements for visitation and
advising the parent of the child[ren]'s progress" (Matter of
Tatianna K. [Claude U.], 79 AD3d at 1185).
Here, respondent lost custody of the children as a result
of her inability to recognize the danger posed by Nigal's father,
and the main impediments to her ability to regain custody were
identified as her failure to acknowledge what had occurred to
Brandon, her inability to understand and address the children's
resulting issues and her lack of suitable housing and employment.
Our review of the record reveals ample support for the conclusion
that petitioner fulfilled its obligation to engage in diligent
efforts to reunite respondent with the children (see Matter of
Arianna I. [Roger I.], 100 AD3d 1281, 1283 [2012]; Matter of Neal
TT. [Deborah UU.], 97 AD3d 869, 870 [2012]; Matter of Mary MM.
[Leuetta NN.], 72 AD3d 1427, 1428 [2010], lv denied 15 NY3d 703
[2010]). Petitioner regularly advised respondent of the
lv dismissed 19 NY3d 856 [2012]).
3
A separate proceeding was brought with respect to
Brandon. Although he was determined to be permanently neglected,
a suspended judgment was entered on consent and he was returned
to respondent's custody. That disposition is not before us.
-4- 516715
necessary steps to have the children returned to her via weekly
in-person counseling, monthly letters updating her on the
children's progress and interactive service plan review meetings.
Respondent's caseworkers provided referrals to appropriate
service providers, including mental health services and housing
and employment agencies that were capable of meeting respondent's
specific needs. Petitioner also facilitated meaningful
visitation by scheduling and supervising 150 visits with the
children. Further, respondent was provided with advice on how to
plan for the visits, was counseled during the visits and received
tips following visits for making them more effective. Although
there were, at times, a lack of coordination and inconsistent
communication from petitioner and its service provider,
particularly with respect to whether respondent's out-of-state
aunt was an appropriate placement option for the children, Family
Court appropriately attributed these isolated incidents to the
length of time that the children had spent in petitioner's care,
the myriad issues that needed to be addressed and the turnover
that occurred in personnel working with petitioner to achieve the
stated goals. Respondent's failure to follow through on the
recommended services and to consistently address the issues
preventing the return of the children does not reflect a lack of
diligent efforts (see Matter of Kayden E. [Luis E.], 111 AD3d
1094, 1097 [2013], lv denied 22 NY3d 862 [2014]; Matter of Neal
TT. [Deborah UU.], 97 AD3d at 870-871; Matter of Telsa Z. [Denise
Z.], 90 AD3d 1193, 1195 [2011], lv denied 18 NY3d 806 [2012]).
The record also supports Family Court's conclusion that
respondent failed to adequately plan for the children's future.
Although respondent regularly exercised her visitation, underwent
some counseling and took some parenting classes, she otherwise
failed to pursue the services offered to her. Respondent
remained inconsistent in her recognition of the abuse perpetrated
against Brandon, made minimal effort in seeking a job, did not
enroll in recommended therapy programs and, based on her
inability to adequately address the children's issues, was unable
to progress beyond supervised visits with them. Accordingly, the
record establishes that she made little or no progress in
addressing the issues that prevented the children's return (see
Matter of Alister UU. [Angela VV.], 117 AD3d 1137, 1138-1139
[2014]; Matter of Ronnie P. [Danielle Q.], 77 AD3d 1094, 1096-
-5- 516715
1097 [2010]; Matter of Maelee N., 48 AD3d 929, 930 [2008], lv
denied 10 NY3d 709 [2008]). Inasmuch as the children have made
considerable improvement in foster care and have bonded with
their foster family, who have expressed a desire to adopt the
children, there is a sound and substantial basis in the record
supporting Family Court's determination that termination of
respondent's parental rights was in the children's best interests
(see Matter of Neal TT. [Deborah UU.], 97 AD3d at 871-872; Matter
of Summer G. [Amy F.], 93 AD3d at 962; Matter of Mary MM.
[Leuetta NN.], 72 AD3d at 1429).
Peters, P.J., Lahtinen, Garry and Lynch, JJ., concur.
ORDERED that the orders are affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court