Matter of Britiny U. , 1 N.Y.S.3d 477 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 8, 2015 518251
________________________________
In the Matter of BRITINY U.,
Alleged to be a Permanently
Neglected Child.
ULSTER COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Respondent;
TARA S.,
Appellant.
(Proceeding No. 1.)
_______________________________ MEMORANDUM AND ORDER
In the Matter of MANUEL U.,
Alleged to be a Permanently
Neglected Child.
ULSTER COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Respondent;
TARA S.,
Appellant.
(Proceeding No. 2.)
________________________________
Calendar Date: November 21, 2014
Before: McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.
__________
Marshall Nadan, Kingston, for appellant.
Heather Harp, Ulster County Department of Social Services,
Kingston, for respondent.
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Ted J. Stein, Woodstock, attorney for the children.
__________
McCarthy, J.P.
Appeals from two orders of the Family Court of Ulster
County (McGinty, J.), entered November 25, 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.
In November 2011, petitioner removed respondent's two
children (born in 2003 and 2009) from her care upon her arrest
and incarceration for the rape of a 12-year-old child. She was
ultimately convicted of rape in the second degree and sentenced
to three years in prison followed by 10 years of postrelease
supervision. In December 2012, petitioner filed permanent
neglect petitions for both children. Following hearings, Family
Court adjudged the children to be permanently neglected by
respondent and terminated her parental rights. Respondent
appeals.
Initially, the petitions complied with the statutory time
prerequisite. Permanent neglect can only be established if a
child is in the care of an authorized agency for, as relevant
here, one year and the parent fails to maintain contact or plan
for the child's future during that time period (see Social
Services Law § 384-b [7] [a]). Respondent incorrectly argues
that the time when a parent is incarcerated does not count toward
that one-year time period. The statute excludes time when "a
parent is actually hospitalized or institutionalized," but that
statutory toll is stated directly after a subdivision discussing
hospitalization or institutionalization due to drug or alcohol
use (Social Services Law § 384-b [7] [d] [ii]). Hence, the toll
applies to time periods when a parent is in an institution or
hospital for drug or alcohol treatment, not when a parent is in a
penal institution (see e.g. Matter of Gregory B., 74 NY2d 77, 82,
89 [1989]; Matter of Kaiden AA. [John BB.], 81 AD3d 1209, 1209-
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1211 [2011]; Matter of Lawrence KK. [Lawrence LL.], 72 AD3d 1233,
1233-1235 [2010], lv denied 14 NY3d 713 [2010]). Thus, the
petitions complied with the statutory time requirement.
Respondent did not preserve her argument that Family Court
improperly relied on inadmissible hearsay evidence. "Only
competent, material and relevant evidence may be admitted in a
fact-finding hearing"; hearsay is not competent, so it is not
admissible (Family Ct Act § 624; see Family Ct Act § 1046 [b]
[iii]; Matter of Aiden XX. [Jesse XX.], 104 AD3d 1094, 1096 n 5
[2013]). Because the caseworker assigned to respondent and her
children during the relevant time period had left the employ of
petitioner's contractor, petitioner's only witness at the fact-
finding hearing was the caseworker's supervisor. Respondent
objected to the supervisor's testimony twice on the ground of
hearsay. Family Court overruled the first objection, noting that
a hearsay objection may be appropriate at a later time, but not
as to that particular question. The court sustained the second
objection. Inasmuch as respondent did not make further hearsay
objections, she did not preserve her current argument that most
of the supervisor's testimony was inadmissible hearsay (see
Matter of Perry v Surplus, 112 AD3d 1077, 1080 [2013]; Matter of
Kayden H. [Kareena H.], 104 AD3d 764, 765 [2013]; compare Kulak v
Nationwide Mut. Ins. Co., 40 NY2d 140, 145-146 [1976]). Hence,
we will not address that argument, and will rely on the
supervisor's testimony as evidence when addressing respondent's
argument that petitioner failed to meet its burden.
Petitioner made diligent efforts to strengthen the parent-
child relationship, but respondent failed to adequately plan for
the children's future and maintain contact with them. Where a
parent is incarcerated, an agency's duty may be satisfied by
"informing the parent of the children's well-being and progress,
responding to the parent's inquiries, investigating relatives
suggested by the parent as placement resources, and facilitating
communication between the children and the parent" (Matter of
Charles K. [Charles L.], 100 AD3d 1308, 1308 [2012]; accord
Matter of Joannis P. [Joseph Q.], 110 AD3d 1188, 1190 [2013], lv
denied 22 NY3d 857 [2013]; see Social Services Law § 384-b [7]
[f]). Here, petitioner presented evidence that the caseworker
sent regular letters to respondent concerning the children's
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well-being and respondent's rights, as well as informing her that
the caseworker could accept collect calls to discuss the
situation. When respondent suggested the children's uncle as a
possible placement resource, petitioner's caseworker attempted to
contact the uncle but received no response. While respondent was
in the local jail for several months before her conviction, she
was provided with biweekly visitation with the children. After
her transfer to a state correctional facility six hours away,
Family Court did not require visitation due to the travel
distance as well as recommendations from the children's
therapists against visitation. During that time period, the
caseworker encouraged respondent to write letters to the children
and for them to write back to her or draw pictures for her. The
caseworker also kept in contact with respondent's corrections
counselor regarding her programming in prison. Hence, petitioner
met its burden of showing that it engaged in diligent efforts to
facilitate respondent's relationship with the children (see
Matter of Joannis P. [Joseph Q.], 110 AD3d at 1190; Matter of
Kaiden AA. [John BB.], 81 AD3d 1209, 1209-1210 [2011]).
Respondent was required, "despite [her] incarceration, to
develop a realistic plan for the children's future" (Matter of
Johanna M. [John L.], 103 AD3d 949, 950 [2013], lv denied 21 NY3d
855 [2013]). Her plan was for the children to remain in foster
care throughout her incarceration and for a period of time
thereafter as necessary for her to establish suitable living
arrangements for the children. She had uncertain plans to move
herself and her children in with a new boyfriend that she met a
few months earlier while in prison, and who the children had
never met, but also testified that she would need to get to know
him better. These vague plans, which would leave the children in
foster care for a period of years, were not viable to secure
permanency for the children (see Matter of Johanna M. [John L.],
103 AD3d at 951; Matter of Hailey ZZ. [Ricky ZZ.], 85 AD3d 1265,
1266 [2011], affd 19 NY3d 422 [2012]; Matter of Kaiden AA. [John
BB.], 81 AD3d at 1210-1211). Respondent also had not adequately
addressed the problem that led to the children's removal, so as
to plan for their return to her care. Despite being ordered to
participate in sex offender treatment, she took months to enroll.
Her testimony regarding the reasons for the delay were not
consistent or compelling. Respondent's testimony regarding the
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underlying crime also shows that she failed to fully accept
responsibility and understand the errors in judgment that led to
her sexual relationship with a 12-year-old boy. Although
respondent did successfully complete parenting and anger
management classes, she failed to fully address the underlying
problems that led to the children's removal and had no plan other
than leaving them in foster care indefinitely. Based on her
failure to plan for their future, despite diligent efforts by
petitioner, Family Court correctly found that respondent
permanently neglected her children, and properly terminated her
parental rights to free the children for adoption (see Matter of
Hailey ZZ. [Ricky ZZ.], 85 AD3d at 1266-1267).
Family Court did not err in issuing orders of protection
prohibiting respondent from contacting the children until they
reach the age of majority. Although an order of protection
issued against a parent in a Family Ct Act article 10 proceeding
can only remain in effect as long as an accompanying
dispositional order (see Family Ct Act § 1056 [1]; Matter of
Sheena D., 8 NY3d 136, 139-140 [2007]; compare Family Ct Act
§ 1056 [4] [permitting orders of protection to extend throughout
a child's minority when applied to a nonparent]), an order of
protection issued in a termination of parental rights matter can
be in effect "for a specific time," which can include until the
child turns 18 (Family Ct Act § 656; see Matter of Kristian J.P.
v Jeannette I.C., 87 AD3d 1337, 1338 [2011]; Matter of Krista I.
v Gregory I., 8 AD3d 696, 698 [2004]). Once respondent's
parental rights were terminated, she had no right to contact the
children and the court had no authority to direct contact between
her and the children (see Matter of Hailey ZZ [Ricky ZZ.], 19
NY3d 422, 438 [2012]). Respondent's son expressed a desire not
to see her and became upset at hearing her letters, despite being
in weekly therapy. Her daughter, who was only two years old when
placed in foster care, had severe developmental delays and has
bonded to the foster parents. Based on this record evidence, the
court properly issued orders of protection prohibiting respondent
from contacting the children.
Garry, Lynch, Devine and Clark, JJ., concur.
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ORDERED that the orders are affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court