Schuyler Cnty. Dep't of Soc. Servs. v. Kimberly R. (In re Issac Q.)

212 A.D.3d 1049

182 N.Y.S.3d 362

In the MATTER OF ISSAC Q., Alleged to be a Permanently Neglected Child.

Schuyler County Department of Social Services, Respondent

v.Kimberly R., Appellant.

533759

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

Calendar Date: December 15, 2022

Decided and Entered: January 26, 2023

Lisa K. Miller, McGraw, for appellant.

Steven J. Getman, County Attorney, Watkins Glen (Kristin E. Hazlitt of counsel), for respondent.

Andrea J. Mooney, Ithaca, attorney for the child.

Before: Garry, P.J., Lynch, Aarons, Reynolds Fitzgerald and Ceresia, JJ.

MEMORANDUM AND ORDER

Lynch, J. Appeal from an order of the Family Court of Schuyler County (Matthew C. Hayden, J.), entered July 23, 2021, 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 respondent's parental rights.

Respondent is the mother of the subject child (born in 2006), who has special needs and attends counseling to address behavioral concerns. In March 2018, a neglect proceeding against respondent was resolved by an adjournment in contemplation of dismissal, with an order of disposition requiring her to, among other things, maintain safe and appropriate housing and adequately supervise the child and his five younger siblings. Less than a month later, petitioner received a hotline call regarding the child and became concerned that respondent was not appropriately supervising him. The child was temporarily removed from the home and placed in petitioner's care, and a proceeding was commenced to hold respondent in violation of the prior order of disposition. In January 2019, respondent consented to a neglect finding with respect to the child and his five younger siblings, and the child's placement in petitioner's custody was continued.

In May 2020, petitioner commenced this permanent neglect proceeding seeking to terminate respondent's parental rights to the child, alleging that, despite its diligent efforts to strengthen the parental relationship, respondent failed to adequately plan for the child's future. Following a fact-finding hearing,¹ Family Court adjudicated the child to be permanently neglected by respondent and, after a dispositional hearing, terminated her parental rights.² Respondent appeals.

To the extent respondent raises arguments directed at the initial removal of the child in connection with the neglect proceeding resulting in the January 2019 consent order, that proceeding is not before us on this appeal and her arguments in that respect are misdirected (see Matter of Jihad N. [Devine N.], 180 A.D.3d 1164, 1165, 119 N.Y.S.3d 607 [3d Dept. 2020] ). As for the heart of the dispute, we conclude that there is a sound and substantial basis in the record to support Family Court's determination that respondent permanently neglected the child.

"[A] permanently neglected child is one who is in the care of an authorized agency and whose parent has failed, for at least one year after the child came into the agency's care, to substantially and continuously or repeatedly plan for the future of the child, although physically and financially able to do so, notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship" ( Matter of Leon YY. [Christopher ZZ.], 206 A.D.3d 1093, 1094, 168 N.Y.S.3d 737 [3d Dept. 2022] [internal quotation marks and citation omitted]; accord Social Services Law § 384–b [7][a] ). "[D]iligent efforts ... mean[s] reasonable attempts by an authorized agency to assist, develop and encourage a meaningful relationship between the parent and child" ( Social Services Law § 384–b [7][f] ), and the petitioning agency bears the burden of proving – by clear and convincing evidence – that such diligent efforts were made (see Matter of Jase M. [Holly N.], 190 A.D.3d 1238, 1241, 141 N.Y.S.3d 153 [3d Dept. 2021], lvs denied 37 N.Y.3d 901, 146 N.Y.S.3d 589, 169 N.E.3d 959 [2021]). "[T]he petitioning agency ‘will be deemed to have fulfilled [that] obligation if appropriate services are offered but the parent refuses to engage in them or does not progress’ " ( Matter of Dawn M. [Michael M.], 174 A.D.3d 972, 973, 107 N.Y.S.3d 450 [3d Dept. 2019], lv denied 34 N.Y.3d 907, 2020 WL 104046 [2020], quoting Matter of Jessica U. [Stephanie U.], 152 A.D.3d 1001, 1003–1004, 59 N.Y.S.3d 195 [3d Dept. 2017] ).

Once diligent efforts have been shown, the petitioner must then prove "by clear and convincing evidence that [the] respondent[ ] failed to substantially plan for the child[ ]’s future" ( Matter of Makayla I. [Sheena K.], 201 A.D.3d 1145, 1148, 160 N.Y.S.3d 476 [3d Dept. 2022] [internal quotation marks and citation omitted], lvs denied 38 N.Y.3d 903, 166 N.Y.S.3d 622, 623, 186 N.E.3d 1290, 1291 [2022]). " ‘[T]o plan for the future of the child’ ... mean[s] to take such steps as may be necessary to provide an adequate, stable home and parental care for the child within a period of time which is reasonable under the financial circumstances available to the parent. The plan must be realistic and feasible, and good faith effort shall not, of itself, be determinative. In determining whether a parent has planned for the future of the child, the court may consider the failure of the parent to utilize medical, psychiatric, psychological and other social and rehabilitative services and material resources made available to such parent" ( Social Services Law § 384–b [7][c] ).

Respondent initially argues that petitioner did not engage in diligent efforts tailored to ameliorate the problems resulting in the child's removal – an inquiry that necessitates an assessment of the circumstances underlying such removal and the concerns preventing reunification (see generally Matter of Colby R. [David Q.], 199 A.D.3d 1192, 1194–1195, 158 N.Y.S.3d 307 [3d Dept. 2021] ). The evidence at the fact-finding hearing demonstrated that respondent and the child have a fraught relationship. The child, who has behavioral challenges and special needs, requires structure, consistency and a calm environment. The child's placement and continuation in foster care was precipitated by, among other things, concerns that respondent was not appropriately supervising him and that the home environment – a two-bedroom trailer occupied by the child's stepfather and five siblings – was too chaotic.

Testimony from the fact-finding hearing established that petitioner provided respondent with a multitude of services to address these issues, including mental health counseling, anger management courses, parenting education classes that taught appropriate discipline techniques and strategies to handle behavioral issues, referrals for housing assistance, family team meetings and weekly visitation with the child, including suggestions about how respondent could improve her relationship with him. The child was also provided with appropriate services, including mental health counseling and anger management courses, as well as various early intervention and school-based services. On this record, we conclude that petitioner proved by clear and convincing evidence that diligent efforts were made to encourage and strengthen the parental relationship (see Matter of Makayla I. [Sheena K.], 201 A.D.3d at 1148, 160 N.Y.S.3d 476 ; Matter of Colby R. [David Q.], 199 A.D.3d at 1194–1195, 158 N.Y.S.3d 307 ).

Notwithstanding such diligent efforts, petitioner also established, by clear and convincing evidence, that respondent failed to substantially plan for the child's future. Although respondent largely participated in the services required of her, she had been unsuccessfully discharged from mental health counseling six times in a 10–year period, and there were ongoing concerns about returning the child to her care. In that regard, despite being aware that the child needed supervision and structure, respondent was not living in the familial home, instead residing at her neighbor's residence with five other adults and four children. The child's younger siblings were living with the stepfather in the family's two-bedroom trailer,³ but they spent a good deal of time at the neighbor's residence, with respondent describing the two households as "one big, huge family."⁴ When the family was over at the neighbor's household, it sometimes resulted in upwards of 20 people being in that location at once. The testimony indicated that various people moved in and out of the neighbor's residence and, as noted by Family Court, respondent described one person who lived at the neighbor's residence for a period of time as a "complete whacko." Another person who briefly resided there was involved in a criminal matter and had hidden guns around the property. Despite respondent's awareness that the living arrangement was inappropriate for the child, that he was uncomfortable with the stepfather and that he required his own room to unwind, respondent had not followed through with a referral to obtain more suitable housing and, at the time of the fact-finding hearing, lacked a concrete plan to move out of the neighbor's residence.

Moreover, a parenting educator at Cornell Cooperative Extension explained that, although she had made 30 to 40 home visits and spent copious amounts of time teaching respondent about appropriate disciplinary techniques and how to effectively respond to poor behavior, respondent had not meaningfully implemented these techniques when dealing with the child's siblings. Several other care providers echoed the same concerns, noting that respondent continually struggled with lack of consistent follow-through on safety plans and had not made sufficient progress to provide the child with the structure and supervision he required.

At the time of the fact-finding hearing, respondent also had not made progress to improve her relationship with the child. In that regard, there was testimony that she "picked on [the child] a lot," often spoke to...