Sullivan Cnty. Dep't of Soc. Servs. v. Shaye R. (In re Isayah R.)

189 A.D.3d 1942

137 N.Y.S.3d 588

In the MATTER OF ISAYAH R., A Neglected Child.

Sullivan County Department of Social Services, Respondent;

v.Shaye R., Appellant.

530683

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

Calendar Date: November 24, 2020

Decided and Entered: December 24, 2020

John Ferrara, Monticello, for appellant.

Sullivan County Department of Family Services, Monticello (Constantina Hart of counsel), for respondent.

Jacqueline Ricciani, Monticello, attorney for the child.

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

MEMORANDUM AND ORDER

Lynch, J.P.

Appeal from an order of the Family Court of Sullivan County (Meddaugh, J.), entered November 4, 2019, which, in a proceeding pursuant to Family Ct Act articles 10 and 10–a, modified the permanency plan of the subject child.

As more fully set forth in our prior decision ( 149 A.D.3d 1223, 51 N.Y.S.3d 259 [2017] ), respondent is the mother of a child (born in 2010) who has special needs. In May 2016, petitioner commenced a neglect proceeding against respondent, alleging that she was unable to provide appropriate supervision for the child due to ongoing substance abuse issues. The child was removed from respondent's care in June 2016 and has resided in a therapeutic foster home since that time.

In May 2019 – at respondent's request – psychologist Claude Schleuderer conducted a psychological evaluation of respondent, the child and the foster parents, after which he issued a report opining that "the best long-term solution [for the child was] ... an [o]pen [a]doption." In connection with Schleuderer's findings, petitioner filed a permanency report seeking to change the child's permanency goal from reunification with respondent to placement for adoption. Following a permanency hearing, Family Court granted petitioner's request, finding that "[a] permanency plan of placement for adoption" was in the child's best interests.¹ Respondent appeals.

As a threshold matter, petitioner has informed us that it filed a petition to terminate respondent's parental rights to the child in January 2020, and the record reveals that another permanency hearing was scheduled for March 2020. Notwithstanding these developments, respondent's appeal from the November 2019 order is not moot. By changing the permanency goal, Family Court "alter[ed] petitioner's obligations in future permanency hearings from working toward reunification to working toward permanent placement and termination of parental rights" ( Matter of Nevaeh L. [Katherine L.], 177 A.D.3d 1400, 1401, 113 N.Y.S.3d 454 [2019] [internal quotation marks and citations omitted] ). Consequently, any new orders entered in this proceeding "w[ill] be the direct result of the order appealed from, and the issue of whether the order appealed from was proper w[ill] continue to affect [respondent's] rights" ( Matter of Victoria B. [Jonathan M.], 164 A.D.3d 578, 580, 82 N.Y.S.3d 504 [2018] ; see Matter of Nevaeh L. [Katherine L.], 177 A.D.3d at 1401, 113 N.Y.S.3d 454 ).

Turning to the merits, we agree with respondent that Family Court failed to conduct an age-appropriate consultation with the child prior to changing the permanency goal (see Family Ct. Act § 1089[d] ), but we conclude that reversal is unnecessary in these circumstances. Pursuant to Family Ct. Act § 1089(d), Family Court must undertake an "age appropriate consultation with the child." Although the statute does not require a personal consultation with the child (see Matter of Sandra DD. [Kenneth DD.], 185 A.D.3d 1259, 1262, 128 N.Y.S.3d 666 [2020] ; Matter of Dawn M. [Michael M.], 151 A.D.3d 1489, 1492, 58 N.Y.S.3d 231 [2017], lv denied 29 N.Y.3d 917, 2017 WL 4019216 [2017] ; Matter of Dakota F. [Angela F.], 92 A.D.3d 1097, 1098, 939 N.Y.S.2d 586 [2012] ), it does obligate the court to find "some age-appropriate means of ascertaining [the child's] wishes" ( Matter of Dawn M. [Michael M.], 151 A.D.3d at 1492, 58 N.Y.S.3d 231 [internal quotation marks and citation omitted] ).

Although Family Court did not speak with the child or directly ascertain his wishes, it heard extensive testimony from Schleuderer regarding the child's emotional state and best interests, as well as his opinion about respondent's ability to handle the child's special needs. Schleuderer's evaluation report, which was admitted into evidence during the hearing, noted the child's feelings about his foster care placement and connection to the foster parents and emphasized that transferring the child to respondent's care would be detrimental to the child's long-term functioning. During the permanency hearing, the attorney for the child conveyed the child's feelings about the "uncertainty of his future," and one of the foster parents recounted certain questions the child had asked her in which he indicated his feelings about being adopted. Under these circumstances, the court's failure to consult with the child or directly ascertain his wishes does not warrant reversal (see e.g. Matter of Sandra DD. [Kenneth DD.], 185 A.D.3d at 1262–1263, 128 N.Y.S.3d 666 ).

Respondent further contends 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. We disagree. "At the conclusion of a permanency hearing, Family 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 child[ ]. Wherever possible, the societal goal and overarching consideration is to return a child to the parent, and reunification remains the goal unless a parent is unable or unwilling to correct the conditions that led to removal" ( Matter of Dakota F. [Angela H.], 180 A.D.3d 1149, 1151, 120 N.Y.S.3d 198 [2020] [internal quotation marks, brackets and citations omitted]; see Matter of Desirea F. [Angela F.], 136 A.D.3d 1074, 1075–1076, 25 N.Y.S.3d 385 [2016] ). "At a permanency hearing, the petitioner bears the burden of establishing the appropriateness of ... a goal change ... by a preponderance of the evidence" ( Matter of Damani B. [Theresa M.], 174 A.D.3d 524, 526, 105 N.Y.S.3d 93 [2019] [internal quotation marks and citation omitted] ). Family Court's determination to modify a permanency goal will not be disturbed unless it lacks a sound and substantial basis in the record (see Matter of Dakota F. [Angela H.], 180 A.D.3d at 1151, 120 N.Y.S.3d 198 ; Matter of Kobe D. [Kelli F.], 97 A.D.3d 947, 948, 948 N.Y.S.2d 716 [2012] ).

The record reveals that, leading up to the permanency hearing, petitioner provided respondent with services that were both appropriate and consistent with the...