Tompkins Cnty. Dep't of Soc. Servs. v. Alexis QQ. (In re Edrick PP.)

221 A.D.3d 1307

201 N.Y.S.3d 307

In the MATTER OF EDRICK PP., Alleged to be a Permanently Neglected Child.

Tompkins County Department of Social Services, Respondent;

v.Alexis QQ., Appellant.

(And Another Related Proceeding.)

535509

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

Calendar Date: October 11, 2023

Decided and Entered: November 22, 2023

Lisa K. Miller, McGraw, for appellant.

Tompkins County Department of Social Services, Ithaca (Isaac D. Lindbloom of counsel), for respondent.

Citizens for Concerned Children, Inc., Ithaca (Thomas G. Shannan of counsel), attorney for the child.

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

MEMORANDUM AND ORDER

Clark, J.P. Appeals from a decision and an order of the Family Court of Tompkins County (John C. Rowley, J.), entered May 4, 2022 and May 20, 2022, which, among other things, 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.

In January 2019, the subject child (born in 2015) was removed from the care of respondent (hereinafter the mother) and placed with the maternal grandmother. One year later, the child was removed from the grandmother's care and placed in a foster home, where he remained throughout these proceedings. In December 2020, petitioner filed the instant petition, alleging that the mother had permanently neglected the child and seeking to terminate her parental rights. The mother consented to a finding of permanent neglect in May 2021, and the dispositional hearing was adjourned to allow the mother an opportunity to engage in services in a more meaningful and continuous way. Following the dispositional hearing in March 2022, Family Court issued a written decision finding that the best interests of the child would not be served by a suspended judgment but, rather, by terminating the mother's parental rights and freeing the child for adoption. A conforming dispositional order was thereafter entered.¹ The mother appeals from the decision and the order.²

Initially, to the extent that the mother appears to challenge the permanent neglect finding, such finding was entered upon her consent and, in the absence of a motion to vacate her admission, is not properly before us on this appeal (see Matter of Brandon N. [Joseph O.], 165 A.D.3d 1520, 1521–1522, 87 N.Y.S.3d 367 [3d Dept. 2018] ; Matter of Abbigail EE. [Elizabeth EE.], 106 A.D.3d 1205, 1206–1207, 965 N.Y.S.2d 213 [3d Dept. 2013] ). The mother's primary contention is that Family Court erred in terminating her parental rights and, instead, should have issued a suspended judgment. We disagree. "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 Issac Q. [Kimberly R.], 212 A.D.3d 1049, 1054, 182 N.Y.S.3d 362 [3d Dept. 2023] [internal quotation marks and citations omitted], lv denied 39 N.Y.3d 913, 2023 WL 3512992 [2023] ; see Matter of Makayla I. [Sheena K.], 201 A.D.3d 1145, 1151, 160 N.Y.S.3d 476 [3d Dept. 2022], lvs denied 38 N.Y.3d 903, 2022 WL 1181372 [2022] ). A suspended judgment is appropriate where a parent has demonstrated that, given a finite period of time, he or she is capable of becoming a fit parent with whom the child can be safely reunited, and that a delay in permanency would not be contrary to the best interests of the child (see Family Ct Act § 633 ; Matter of Jason O. [Stephanie O.], 188 A.D.3d 1463, 1467–1468, 135 N.Y.S.3d 530 [3d Dept. 2020], lv denied 36 N.Y.3d 908, 2021 WL 1134743 [2021] ; Matter of Isabella H. [Richard I.], 174 A.D.3d 977, 981–982, 107 N.Y.S.3d 444 [3d Dept. 2019] ).

In arguing that Family Court should have granted her request for a suspended judgment, the mother hyperfixates on her successful completion of a 30–day inpatient substance abuse treatment program at French Creek Recovery Center in late November 2021. While the completion of such inpatient treatment program is a laudable first step, the mother failed to demonstrate that a short grace period would allow her to become a fit parent. Indeed, the mother testified that she entered French Creek because she "got tired of being accused of using and ... needed a break," and the record demonstrates that while she was there she minimally engaged in treating her substance abuse issues. Prior to going to French Creek, the mother largely failed to attend Family Treatment Court (hereinafter FTC) or to check in with her FTC coordinator, and she tested positive for fentanyl in September 2021 and for cocaine in October 2021. Upon her discharge from French Creek, the mother began regularly attending a sober support group, but she did not follow French Creek's recommendations to attend FTC, had not engaged in further substance abuse treatment and had not submitted to any drug screens. The mother also failed to meaningfully engage in mental health treatment. In the six months before she went to French Creek, the mother attended only two counseling sessions; after leaving French Creek in December 2021, and despite the recommendation that she engage in mental health treatment, the mother attended only a single counseling session, which occurred the week before the dispositional hearing.

The mother and the caseworkers agreed that the mother's visits with the child were generally positive, and that the child was happy to spend time with the mother. Prior to going to French Creek, the mother had biweekly supervised visits and attended most of them. However, after her discharge from French Creek, the mother did not see the child in person, and only had one phone call with him.³ The caseworkers explained that they had made numerous attempts to meet with the mother to, among other things, set a parenting time schedule, but the mother either rescheduled or failed to appear.

The mother also failed to take advantage of opportunities to familiarize herself with the needs of the child, who is autistic. Although...