In re Gabrielle N.

2022 NY Slip Op 01213

In the Matter of Gabrielle N. and Others, Neglected Children. Saratoga County Department of Social Services, Respondent; Linda N., Appellant. (Proceeding No. 1.) (And Another Related Proceeding.) In the Matter of Hayden N., a Neglected Child. Saratoga County Department of Social Services, Respondent; Bruce N., Appellant. (Proceeding No. 3.) (And Another Related Proceeding.)

Nos. 531804, 532214

Supreme Court of New York, Third Department

February 24, 2022

Calendar Date: January 14, 2022

Susan J. Civic, Albany, for Linda N., appellant.

Alexandria G. Verrigni, Rexford, for Bruce N., appellant.

Michael Hartnett, County Attorney, Ballston Spa (Alexis M Osborne of counsel), for respondent.

Kimberly A. Harp, Clifton Park, attorney for the children.

Before: Garry, P.J., Clark, Aarons, Reynolds Fitzgerald and Fisher, JJ.

Reynolds Fitzgerald, J.

Appeals from two orders of the Family Court of Saratoga County (Jensen, J.), entered June 8, 2020, which, in four proceedings pursuant to Family Court articles 10 and 10-a, modified the permanency plan of the subject children.

Respondent Linda N. (hereinafter the mother) and respondent Bruce N. (hereinafter the father) are the parents of five children (born in 2007, 2013, 2014 and 2016 [twins]). In December 2017, petitioner filed a neglect petition against the mother alleging impairment of said children's physical, mental and/or emotional condition, misuse and/or abuse of drugs, failure to provide proper supervision and guardianship, failure to adequately treat or seek treatment for the mother's mental illness and engagement in domestic violence in the presence of the children. ^[1] A temporary removal order was issued and, after a removal hearing, Family Court, in January 2018, removed the children to foster care upon a finding that the mother failed to substantially comply with the terms of the temporary order and the children were in imminent danger if not removed from the mother's care. In June 2018, petitioner issued its first permanency plan report setting forth the goal of return to parent. In July 2018, Family Court, based upon the mother's consent, entered on order of fact-finding and disposition, adjudging the children to be neglected.

In September 2018, the mother gave birth to another child and petitioner filed derivative neglect petitions against the mother and the father. In March 2019, Family Court entered a fact-finding order and order of disposition adjudging this child to be derivatively neglected. In March 2020, petitioner once again filed a permanency hearing report setting forth the goal of return to parent. Following a hearing, Family Court, by order entered in June 2020, found that the children should remain in petitioner's custody and that petitioner had made reasonable efforts to make and finalize the permanency planning goal of return to parent. As to the parents, the court found that the mother failed to complete mental health counseling, the mother and the father were both unsuccessfully discharged from Northeast Intensive Aftercare Prevention Program (hereinafter IAPP), ^[2] the mother failed to contact and cooperate with petitioner, the mother and the father failed to attend the children's appointments, the father failed to protect one of the children from his father (the child's grandfather), who had sexually abused her, and the father failed to obtain appropriate housing and, instead, continued to reside with the grandfather. Based on these findings, Family Court modified the permanency plan from return to parent to placement for adoption. ^[3] The mother and the father separately appeal from the June 2020 order.

"At the conclusion of a permanency hearing, the court has the authority to modify an existing permanency goal and must enter a disposition based upon the proof adduced and in accordance with the best interests of the children" (Matter of Dawn M. [Michael M.], 151 A.D.3d 1489, 1490 [2017] [internal quotation marks, brackets and citations omitted], lv denied 29 N.Y.3d 917 [2017]). "While the aspiration is to return... child[ren] to [their] parents, where such goal proves impossible because [the] parent[s] [are] unable to correct the conditions that led to the removal, the goal then becomes finding a permanent, stable solution for the child[ren]" (Matter of Duane FF. [Harley GG.], 135 A.D.3d 1093, 1093-1094 [2016] [internal quotation marks, ellipses and citations omitted], lv denied 27 N.Y.3d 904 [2016]). "Family Court's determination to modify a permanency goal will not be disturbed unless it lacks a sound and substantial basis in the record" (Matter of Isayah R. [Shaye R.], 189 A.D.3d 1942, 1944-1945 [2020] [citations omitted]).

The mother and the father contend that petitioner failed to make a sincere effort at reunification and that the evidence adduced at the permanency hearing did not support modifying the permanency goal. The record reveals that petitioner provided services to the mother and the father that were both appropriate and consistent with the prior goal of reunification. Petitioner undertook visits to the foster homes of the children, contacted service providers, reviewed service provider records, scheduled telephone calls and visits between the parents and the children, scheduled sibling visits, ensured the children were receiving proper services - including mental health counseling, medical and dental appointments and appropriate individual education plans - advised the parents of the children's medical appointments, dental appointments and individual education plan meetings, engaged in repeated contact with the father and the mother, ^[4] arranged for transportation and explored relative resources (see Matter of Isayah R. [Shaye R.], 189 A.D.3d at 1945).

The evidence at the hearing also revealed that the mother failed to complete mental health counseling services, the mother and the father were unsuccessfully discharged from IAPP due to lack of progress and attendance, and both failed to attend many of the children's medical and dental appointments...