Wash. Cnty. Dep't of Soc. Servs. v. Stephanie O. (In re Jason O.)

188 A.D.3d 1463

135 N.Y.S.3d 530

In the MATTER OF JASON O., Alleged to be a Permanently Neglected Child.

Washington County Department of Social Services, Respondent;

v.Stephanie O., Appellant.

(And Another Related Proceeding.)

528066

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

Decided and Entered: November 25, 2020

Alexandra J. Buckley, Clifton Park, for appellant.

Roger A. Wickes, County Attorney, Fort Edward (Daniel S. Martindale of counsel), for respondent.

Rose T. Place, Glens Falls, attorney for the child.

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

MEMORANDUM AND ORDER

Clark, J. Appeals from a decision and an order of the Family Court of Washington County (Michelini, J.), entered September 20, 2018 and November 14, 2018, 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.

Respondent is the mother of a son (born in 2016), who has been in foster care since he was nearly two weeks old. In March 2017, upon respondent's admission that she failed to maintain a safe, stable and adequate home for the child, Family Court adjudicated the child to have been neglected, continued the child's placement with petitioner and entered an order of supervision requiring respondent to, among other things, obtain and maintain safe, stable and sanitary housing and participate in mental health counseling and other support services. In November 2017, after the child had been in petitioner's care for over 15 months, petitioner commenced the instant permanent neglect proceeding based upon respondent's failure to substantially plan for the child's future. Following a fact-finding hearing and a dispositional hearing, Family Court adjudicated the child to have been permanently neglected by respondent,¹ terminated respondent's parental rights and transferred guardianship and custody of the child to petitioner.² Respondent appeals, challenging the permanent neglect finding and the termination of her parental rights.³

As relevant here, 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" ( Social Services Law § 384–b [7][a] ). As a threshold matter, the agency must prove – by clear and convincing evidence – that it made diligent efforts to encourage and strengthen the parent's relationship with the child (see Matter of Kaylee JJ. [Jennifer KK.] , 159 A.D.3d 1077, 1078, 71 N.Y.S.3d 220 [2018] ; Matter of Paige J. [Jeffrey K.] , 155 A.D.3d 1470, 1472, 65 N.Y.S.3d 357 [2017] ). Diligent efforts will be found when the agency makes "practical and reasonable efforts to ameliorate the problems preventing reunification and [to] strengthen the family relationship" through means such as" assisting the parent with visitation, providing information on the child's progress and development, and offering counseling and other appropriate educational and therapeutic programs and services" (Matter of Carter A. [Courtney QQ.] , 121 A.D.3d 1217, 1218, 993 N.Y.S.2d 799 [2014] ; accord Matter of Jessica U. [Stephanie U.] , 152 A.D.3d 1001, 1002–1003, 59 N.Y.S.3d 195 [2017] ).

As reflected by the record, the child was removed from respondent's care due to concerns regarding respondent's lack of housing at the time of the child's birth and respondent's ability to identify and meet the child's needs given respondent's perceived mental health issues and cognitive limitations. With respect to respondent's housing situation, the evidence demonstrated that petitioner's caseworker helped respondent secure temporary housing at a hotel, met regularly with respondent regarding her living situation, arranged for petitioner to act as respondent's representative payee so that respondent could access her Social Security income and referred respondent to a financial management class. The caseworker testified that, given concerns about respondent's ability to understand the material presented at the financial management class, arrangements were made to provide respondent with one-on-one instruction.

Additionally, upon petitioner's referral, respondent underwent a psychological assessment in September 2016 to determine respondent's "level of intellectual and adaptive functioning" and "whether she [could] care for [the] child independently." This assessment revealed that respondent's cognitive functioning falls "within the low range of borderline intellectual functioning," but that she is expected to have "the cognitive ability to parent [the] child with support." The assessment report indicated that respondent needs support services to assist her in parenting adequately and safely, would benefit from mental health counseling and requires regular repetition and review of parenting skills to learn and maintain those skills.

Consistent with the findings and recommendations of the psychological assessment, petitioner facilitated respondent's supervised visits with the child several times a week. During those visits, respondent was coached on various parenting skills, such as making bottles, feeding the child and changing diapers and outfits. The evidence also demonstrated that petitioner referred respondent to a parenting class and that the caseworker assisted respondent with organizational skills, including tracking visits and appointments in a calendar. Further, petitioner's caseworker testified that, to address respondent's mental health concerns, she coordinated with Hudson Headwaters Care Management Services and the Association of Mental Health and was able to facilitate respondent's admission to outpatient services at Glens Falls Hospital. Petitioner provided respondent with transportation to and from her visits with the child, as well as various other appointments and services.

Testimony from the caseworker, as well as a family specialist at Berkshire Farms, revealed that petitioner's ability to work with respondent was significantly hampered in May 2017, when respondent moved to Florida without notice. The caseworker stated that, notwithstanding the difficulties posed by the move, petitioner attempted to assist respondent in obtaining mental health treatment in Florida, coordinated virtual visits between respondent and the child and provided respondent with tips and suggestions to engage the child during those virtual visits. Upon consideration of all of the foregoing, we agree with Family Court that petitioner established, by clear and convincing evidence, that it made diligent efforts to ameliorate the concerns that led to the child's removal and to strengthen the parent-child relationship (see Matter of Keadden W. [Hope Y.] , 165 A.D.3d 1506, 1507–1508, 87 N.Y.S.3d 380 [2018], lv denied 32 N.Y.3d 914, 2019 WL 637883 [2019] ; Matter of Alexander Z. [Jimmy Z.] , 149 A.D.3d 1177, 1178–1179, 51 N.Y.S.3d 231 [2017] ; Matter of Cory N. [Jessica O.] , 111 A.D.3d 1079, 1080, 976 N.Y.S.2d 248 [2013] ).

As petitioner met its threshold burden of establishing diligent efforts, we now turn to whether petitioner demonstrated, through clear and convincing evidence, that respondent failed to substantially plan for the future of the child for the requisite period of time (see Matter of Kaylee JJ. [Jennifer KK.] , 159 A.D.3d at 1078, 71 N.Y.S.3d 220 ; Matter of Landon U. [Amanda U.] , 132 A.D.3d 1081, 1084, 19 N.Y.S.3d 341 [2015] ). To substantially plan for the child's future, a parent must take meaningful steps to correct the conditions that led to the child's removal (see Matter of Paige J. [Jeffrey K.] , 155 A.D.3d at 1474, 65 N.Y.S.3d 357 ; Matter of Alexander Z. [Jimmy Z.] , 149 A.D.3d at 1179, 51 N.Y.S.3d 231 ).

The evidence established that, between the child's removal in July 2016 and respondent's move to Florida in May 2017, respondent failed to secure and maintain stable housing. Indeed, the testimony demonstrated that respondent's conduct resulted in her losing housing that petitioner had secured for her in New York and that she thereafter bounced from one address to another. Although respondent maintained a stable address once she moved to Florida, the record reflects that respondent was living with the child's maternal grandparents and that there were ongoing sanitation and safety concerns regarding the suitability of the home. As for respondent's mental health issues, respondent was discharged from outpatient services at the Glens Falls Hospital in January 2017 due to respondent's lack of attendance and refusal to engage in the appointments that she did attend. The evidence reflects that respondent's failure to sign releases thwarted subsequent efforts to obtain alternate mental health treatment and that she did not reengage in mental health counseling until September 2017, over 13 months after the child's removal.

With respect to respondent's ability to identify and meet the child's needs, the evidence demonstrated that respondent completed a parenting class on her second try, attended most of the child's medical appointments and was making some progress in learning parenting skills during her coached visits with the child in New York. However, as established by the...