Cortland Cnty. Dep't of Soc. Servs. v. Heidi O. (In re Nevaeh N.)

220 A.D.3d 1070

197 N.Y.S.3d 749

In the MATTER OF NEVAEH N., Alleged to be a Permanently Neglected Child.

Cortland County Department of Social Services, Respondent;

v.Heidi O., Appellant. (Proceeding No. 1.)

In the Matter of Nevaeh N., Alleged to be a Permanently Neglected Child.

Cortland County Department of Social Services, Respondent;

v.Cornelius N., Appellant. (Proceeding No. 2.)

534699

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 5, 2023

Decided and Entered: October 19, 2023

Rural Law Center of New York, Inc., Plattsburgh (Kristin A. Bluvas of counsel), for Heidi O., appellant.

Lisa K. Miller, McGraw, for Cornelius N., appellant.

Cortland County Department of Social Services, Cortland (Keith I. Cassidy of counsel), for respondent.

Thomas G. Shannan, Ithaca, attorney for the child.

Before: Lynch, J.P., Clark, Aarons, Pritzker and Ceresia, JJ.

MEMORANDUM AND ORDER

Aarons, J. Appeal from an order of the Family Court of Cortland County (Julie A. Campbell, J.), entered December 28, 2021, which granted petitioner's applications, in two proceedings pursuant to Social Services Law § 384–b, to adjudicate the subject child to be permanently neglected, and terminated respondents’ parental rights.

Respondent Heidi O. and respondent Cornelius N. (hereinafter the father) are the parents of a child (born in 2020). The child was removed from respondents’ custody when the child was four days old because respondents were abusing drugs and had inappropriate housing. In 2021, petitioner commenced these proceedings seeking termination of respondents’ parental rights on the basis of permanent neglect. Following fact-finding and dispositional hearings, Family Court found that the child was permanently neglected and terminated respondents’ parental rights. This appeal ensued.

Regarding the adjudication of permanent neglect, petitioner bore the burden of proving by clear and convincing evidence that, first, it made diligent efforts to encourage and strengthen the relationship between respondents and the child and that, second, respondents failed to adequately plan for the child's future despite being able to do so (see Matter of Isaac Q. [Kimberly R.], 212 A.D.3d 1049, 1050–1051, 182 N.Y.S.3d 362 [3d Dept. 2023], lv denied 39 N.Y.3d 913, 2023 WL 3512992 [2023] ; Matter of Timothy GG. [Meriah GG.], 163 A.D.3d 1065, 1070, 81 N.Y.S.3d 311 [3d Dept. 2018], lvs denied 32 N.Y.3d 908, 89 N.Y.S.3d 115, 113 N.E.3d 949 [2018], 32 N.Y.3d 908, 2018 WL 5259916 [2018] ). As to the initial evidentiary requirement, the fact-finding hearing testimony reflects that petitioner arranged visitation between the child and respondents through a third-party agency and that respondents were referred to parenting classes and counseling for mental health and substance abuse issues. A caseworker with petitioner testified that she kept apprised of respondents’ progress from the relevant agencies, arranged progress meetings with respondents and communicated with them to keep them engaged with classes or counseling. The caseworker also testified that services were provided to respondents so that they could obtain suitable and safe housing and that she gave them bus passes or drove them herself to assist them with transportation. In view of the foregoing, petitioner met its threshold burden (see Matter of Dawn M. [Michael M.], 174 A.D.3d 972, 973–974, 107 N.Y.S.3d 450 [3d Dept. 2019], lv denied 34 N.Y.3d 907, 2020 WL 104046 [2020] ; Matter of Kapreece SS. [Latasha SS.], 128 A.D.3d 1114, 1115, 9 N.Y.S.3d 417 [3d Dept. 2015], lv denied 26 N.Y.3d 903, 2015 WL 5154932 [2015] ).

Petitioner also established by clear and convincing evidence that respondents failed to adequately plan for the child's future despite being able to do so (see Matter of Isabella H. [Richard I.], 174 A.D.3d 977, 980–981, 107 N.Y.S.3d 444 [3d Dept. 2019] ; Matter of Kapreece SS. [Latasha SS.], 128 A.D.3d at 1115, 9 N.Y.S.3d 417 ; Matter of Aniya L. [Samantha L.], 124 A.D.3d 1001, 1005, 1 N.Y.S.3d 527 [3d Dept. 2015], lv denied 25 N.Y.3d 904, 2015 WL 2032963 [2015] ). The record discloses that respondents missed at least half of the scheduled visitations with the child. Multiple times, respondents did not call the agency to advise it that they would not be coming in for a scheduled visitation and, on one occasion, respondents missed visitation because they overslept. During one visitation, the father was under the influence of an illicit substance and, during another one, the father only engaged sporadically with the child. Respondents also did not complete the offered substance abuse or mental health counseling and missed multiple parenting classes. Indeed, they were both unsuccessfully discharged from substance abuse counseling, and the father admitted that he "just didn't feel like doing it." The testimony from the fact-finding hearing also reflects that respondents failed to obtain suitable housing and did not attend some family team meetings. Accordingly, the determination that respondents permanently neglected the child is supported by a sound and substantial basis in the record (see Matter of Isaac Q. [Kimberly R.], 212 A.D.3d at 1053, 182 N.Y.S.3d 362 ; Matter of Isabella H. [Richard I.]. 174 A.D.3d at 981, 107 N.Y.S.3d 444 ; Matter of Summer G. [Amy F.], 93 A.D.3d 959, 961, 939 N.Y.S.2d 663 [3d Dept. 2012] ).

The father's argument that Family Court erred in taking judicial notice of prior neglect proceedings and orders that involved him, as well as his prior criminal convictions, is unpreserved in the absence of a timely objection (see Matter of Benjamin v. Benjamin, 48 A.D.3d 912, 914, 851 N.Y.S.2d 305 [3d Dept. 2008] ). Regardless, even if preserved, any error by the court was harmless (see Matter of Jase M. [Holly N.], 190 A.D.3d 1238, 1242, 141 N.Y.S.3d 153 [3d Dept. 2021], lvs denied 37 N.Y.3d 901, 2021 WL 2152676 [2021] ; Matter of Anjoulic J., 18 A.D.3d 984, 987, 794 N.Y.S.2d 709 [3d Dept. 2005] ; Matter of Justin EE., 153 A.D.2d 772, 774, 544 N.Y.S.2d 892 [3d Dept. 1989], lv denied 75 N.Y.2d 704, 552 N.Y.S.2d 109, 551 N.E.2d 602 [1990] ). The father also argues that the court erred in admitting certain substance abuse treatment records because they lacked a certification required by Family Ct Act § 1046(a)(iv). The certification requirement of that statute, however, does not apply to the instant proceedings, which seek the termination of parental rights under Social Services Law § 384–b (see Matter of Shirley A.S. [David A.S.], 90 A.D.3d 1655, 1655, 936 N.Y.S.2d 825 [4th Dept. 2011], lv denied 18 N.Y.3d 811, 2012 WL 1432199 [2012] ). Even if the court erred in admitting these records, it was harmless error.

"Following an adjudication of permanent neglect, the sole concern at a dispositional hearing is the best interests of the child, and there is no presumption that any particular disposition, including the return of a child to a parent, promotes such interests" ( Matter of Zaiden P. [Ashley Q.], 211 A.D.3d 1348, 1355, 180 N.Y.S.3d 661 [3d Dept. 2022] [internal quotation marks, brackets and citations omitted], lv denied 39 N.Y.3d 911, 2023 WL 3011826 [2023], lv denied 39 N.Y.3d 911, 2023 WL 3011839 [2023] ). The caseworker testified at the dispositional hearing that respondents did...