Matter of Merinda MM. , 39 N.Y.S.3d 275 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 20, 2016 521540
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In the Matter of MERINDA MM.,
Alleged to be a Permanently
Neglected Child.
BROOME COUNTY DEPARTMENT OF
SOCIAL SERVICES, MEMORANDUM AND ORDER
Respondent;
SIRENA NN. et al.,
Appellants.
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Calendar Date: September 6, 2016
Before: Peters, P.J., McCarthy, Lynch, Rose and Clark, JJ.
__________
Samuel D. Castellino, Big Flats, for Sirena NN., appellant.
Sandra M. Colatosti, Albany, for Carl MM., appellant.
Thomas P. Coulson, Broome County Department of Social
Services, Binghamton, for respondent.
James Mack, Binghamton, attorney for the child.
__________
Clark, J.
Appeal from a corrected order of the Family Court of Broome
County (Connerton, J.), entered August 14, 2015, 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 respondents' parental
rights.
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Respondent Carl MM. (hereinafter the father) and respondent
Sirena NN. (hereinafter the mother) are the parents of a daughter
(born in 2012). The child was removed from respondents' care two
weeks after her birth on the basis that, in violation of a safety
contract agreed to by petitioner and respondents, the father and
the child were residing with the mother, a registered sex
offender who had been convicted of sexually abusing one of her
older children, and that the father had permitted the mother
unsupervised contact with the child. The child was subsequently
adjudicated to have been neglected by respondents and, in April
2014, petitioner commenced this proceeding against respondents
seeking adjudications of permanent neglect and termination of
their parental rights. Following respondents' admissions of
permanent neglect and a dispositional hearing, Family Court
adjudicated the child to be permanently neglected and terminated
respondents' parental rights. Respondents separately appeal,
each arguing that Family Court should have imposed the
alternative disposition of a suspended judgment.
We affirm. The singular inquiry in a dispositional hearing
following an adjudication of permanent neglect is which
disposition relating to the child's future care and custody is in
his or her best interests; there is no presumption that any
particular disposition will promote such interests (see Family Ct
Act § 631; Matter of Kayden E. [Luis E.], 111 AD3d 1094, 1098
[2013], lv denied 22 NY3d 862 [2014]; Matter of Kellcie NN.
[Sarah NN.], 85 AD3d 1251, 1252 [2011]). Family Court may, in
its discretion, commit guardianship and custody of the child to
the petitioning agency or issue a suspended judgment, which
provides a parent with "a brief grace period within which to
become a fit parent with whom the child can be safely reunited"
(Matter of Hazel OO. [Roseanne OO.], 133 AD3d 1126, 1127 [2015]
[internal quotation marks and citations omitted]; see Family Ct
Act § 631 [b], [c]; Matter of Kayden E. [Luis E.], 111 AD3d at
1098).
The record establishes that, although she acted
appropriately during her supervised visits with the child, the
mother failed to complete the mandated sexual abuse treatment
program. In large part, the mother's lack of progress in the
program was a result of a sexual abuse charge brought against her
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in March 2014, during the pendency of which she was discharged
from the program. The mother reengaged in the sexual abuse
treatment program in January 2015 following her plea of guilty in
the criminal action and, unsurprisingly, did not achieve her
treatment goals during the brief period of individual counseling
preceding the dispositional hearing, despite her attendance,
"strong effort" and cooperation. Notwithstanding her promising
start in counseling, the mother violated the program's rules by
engaging with social media and stated to a clinical social worker
that she had admitted to sexually abusing five of her other
children only because the children had reported the abuse.
Furthermore, the mother was sentenced to a 10-year term of
probation, under the terms of which she was prohibited from
having unsupervised contact with minors. Upon consideration of
the foregoing, as well as the mother's lengthy Family Ct Act
article 10 history relating to her 10 older children, a sound and
substantial basis supports Family Court's determination that
termination of the mother's parental rights was in the best
interests of the child and, thus, we discern no abuse of
discretion in Family Court's denial of the mother's request for a
suspended judgment (see Matter of Iris Shawntelle Marie C., 22
AD3d 328, 329 [2005]; Matter of Brandon OO., 302 AD2d 807, 807-
808 [2003]; Matter of Kaitlyn R., 279 AD2d 912, 916 [2001]).
With respect to the father, there was no evidence of a
demonstrated ability to serve as a protective ally for the child.
The father twice participated in Protective Allies for Children's
Education, a program that seeks to educate nonoffenders of the
risks of being romantically involved with sex offenders and how
to protect children from sexual abuse at the hands of those
offenders. Despite his participation, the program's
administrators reported that the father did not derive any
benefit from the program. The father acknowledged the mother's
status as a sex offender, yet resisted petitioner's repeated
directions to establish a separate residence from the mother.
When the father later claimed to have established a separate
residence, numerous unannounced visits cast doubt on that claim.
Additionally, the father allowed the mother and her son – another
known sex offender – to have unsupervised contact with his other
children. While the father eventually acknowledged the risks
that the mother posed to the child, there was no proof
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establishing how his new-found understanding of these risks would
impact his parenting or translate into an ability to be a
protective ally for the child. Moreover, at the time of the
dispositional hearing, the father had not completed the mandated
anger management course, further demonstrating his lack of
commitment to reunification with the child. According deference
to Family Court's choice of dispositional alternatives, these
circumstances, along with the length of time that the child
remained in petitioner's care, provided a sound and substantial
basis for Family Court's determination that termination of the
father's parental rights, rather than a suspended judgment, was
in the child's best interests (see Matter of Michael JJ. [Gerald
JJ.], 101 AD3d 1288, 1293 [2012], lv denied 20 NY3d 860 [2013];
Matter of James U. [James OO.], 79 AD3d 1191, 1193 [2010]; Matter
of Vivian OO., 34 AD3d 1111, 1115 [2006], lv denied 8 NY3d 808
[2007]).
Peters, P.J., McCarthy, Lynch and Rose, JJ., concur.
ORDERED that the corrected order is affirmed, without
costs.
ENTER:
Robert D. Mayberger
Clerk of the Court