G., GERALD, MTR. OF ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
124
CAF 10-02395
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ.
IN THE MATTER OF GERALD G., JR., AND
SYLVANNA G.
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ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;
ORENA G., RESPONDENT-APPELLANT.
CHARLES J. GREENBERG, BUFFALO, FOR RESPONDENT-APPELLANT.
JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER-RESPONDENT.
DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, THE LEGAL AID BUREAU OF
BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL), FOR GERALD
G., JR.
MARY ANNE CONNELL, ATTORNEY FOR THE CHILD, BUFFALO, FOR SYLVANNA G.
Appeal from an order of the Family Court, Erie County (Patricia
A. Maxwell, J.), entered September 23, 2010 in a proceeding pursuant
to Social Services Law § 384-b. The order, among other things,
terminated respondent’s parental rights with respect to the subject
children.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order that, inter
alia, terminated her parental rights with respect to two of her
children. Contrary to the mother’s contention, “[p]etitioner met its
initial burden of establishing by clear and convincing evidence that
it made the requisite diligent efforts to encourage and strengthen the
[mother’s] relationship with the child[ren]” (Matter of Rachael N., 70
AD3d 1374, lv denied 15 NY3d 708; see Matter of Geoffrey N., 16 AD3d
1167). Petitioner was not required to ensure that the mother
succeeded in overcoming her obstacles but, rather, the mother was
required to assume some responsibility in dealing with those
challenges (see Matter of La’Derrick J.W., 85 AD3d 1600, 1601, lv
denied 17 NY3d 709; Matter of Whytnei B., 77 AD3d 1340). Here, the
record establishes that the mother was unable to keep her house clean,
to budget properly or to parent the children properly. Indeed, during
the three years in which the proceeding was pending, the mother never
progressed beyond supervised visitation with the children. Further,
the expert psychologists for both petitioner and the mother testified
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CAF 10-02395
that the mother was not yet able to assume parenting duties for the
children. Although the mother attended parenting and domestic
violence classes, the evidence establishing that she was
“inconsistently applying the knowledge and benefits she obtained from
the services provided[ and] arguing with various service providers and
professionals” sufficiently supported a finding that she failed to
articulate a realistic plan for the children’s return to her care
(Matter of Douglas H., 1 AD3d 824, 825, lv denied 2 NY3d 701; see
Matter of Elijah NN., 20 AD3d 728, 730). Thus, the evidence in the
record establishes that the mother failed to “plan for the future of
the child[ren], although physically and financially able to do so”
(Social Services Law § 384-b [7] [a]; see Family Ct Act § 611).
We reject the mother’s further contention that terminating her
parental rights was not in the best interests of the children. Upon a
finding of permanent neglect, “[a]n order of disposition shall be made
. . . solely on the basis of the best interests of the child, and
there shall be no presumption that such interests will be promoted by
any particular disposition” (Family Ct Act § 631). The record
establishes that the subject children had been in petitioner’s care
for approximately four years when the order on appeal was entered, and
that they were thriving in their foster home. In contrast, the record
establishes that, when the children were removed from the mother’s
care, the son was often nervous and uncontrollable, and the daughter
was experiencing a physical failure to grow. Contrary to the
contention of the mother, “ ‘[t]he progress made by [her] in the
months preceding the dispositional determination was not sufficient to
warrant any further prolongation of the child[ren]’s unsettled
familial status’ ” (Matter of Roystar T., 72 AD3d 1569, 1569, lv
denied 15 NY3d 707). Finally, we reject the mother’s further
contention that Family Court abused its discretion in denying her
request for a suspended judgment (see Matter of Arella D.P.-D., 35
AD3d 1222, lv denied 8 NY3d 809).
Entered: January 31, 2012 Frances E. Cafarell
Clerk of the Court