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In re Dawn M.

Supreme Court of New York, Third Department

June 29, 2017

In the Matter of DAWN M. and Others, Neglected Children. BROOME COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; MICHAEL M. et al., Appellants.

          Calendar Date: May 2, 2017

          Eric K. Schillinger, East Greenbush, for Michael M., appellant.

          Mitch Kessler, Cohoes, for Brendi M., appellant.

          Kuredin V. Eytina, Broome County Department of Social Services, Binghamton, for respondent.

          Pamela B. Bleiwas, Ithaca, attorney for the children.

          Before: Peters, P.J., Garry, Lynch, Clark and Aarons, JJ.

          MEMORANDUM AND ORDER

          AARONS, J.

         Appeal from an order of the Family Court of Broome County (Pines, J.), entered September 3, 2015, which, in a proceeding pursuant to Family Ct Act articles 10 and 10-A, modified the permanency plan of the subject children.

         Respondent Brendi M. (hereinafter the mother) and respondent Michael M. (hereinafter the father) are the parents of

         four daughters, Desirae M. (born in 2004), Samantha M. (born in 2007), Summer M. (born in 2008) and Dawn M. (born in 2009). In May 2013, respondents were adjudicated to having neglected the children and were ordered to engage in court-ordered rehabilitative services. In September 2013, the children, after they had been residing with the father, were removed to the care and custody of petitioner stemming from allegations that the father struck Desirae [1]. In March 2015, petitioner filed a permanency hearing report seeking to change the permanency goal for the children from return to parent to termination of parental rights and freeing the children for adoption. The parties subsequently consented to keeping placement of the children in foster care and to a permanency plan of return to parent pending the filing of a petition to terminate parental rights. The mother thereafter objected to the continued placement of the children in foster care and Family Court reopened the permanency hearing on the mother's application for return of the children [2]. Following the hearing, in a September 2015 order, Family Court modified the permanency plan from return to parent to termination of parental rights and freeing the children for adoption and directed petitioner to file a termination of parental rights petition. The father and the mother separately appeal from the September 2015 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 child[ren]" (Matter of Dezerea G. [Lisa G.], 97 A.D.3d 933, 935 [2012] [citations omitted]; see Matter of Rebecca KK., 55 A.D.3d 984, 986 [2008]). "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 Kobe D. [Kelli F.], 97 A.D.3d 947, 948 [2012] [internal quotation marks and citations omitted]; see generally Matter of Michael B., 80 N.Y.2d 299, 310 [1992]).

         At the hearing, a foster care caseworker testified that she supervised visits between the mother and the children and stated that the goals were to refrain from using excessive corporal punishment or physical abuse and to improve parenting skills. Notwithstanding these goals, the foster care caseworker testified regarding her concerns about the mother's behavior as it related to the children's safety when the mother visited with the children. The mother would become increasingly frustrated when trying to discipline the children and, on more than one occasion, she almost hit one of them when throwing her hands up in exasperation. While the foster care caseworker stated that the mother did not strike the child, the caseworker was nonetheless concerned because the mother displayed a lack of awareness as to the child's whereabouts. The caseworker further testified that she was concerned that the mother's frustration may rise to the level of physical force being used.

         The foster care caseworker described one visitation where the mother threatened to leave when she could not control the children and this caused the children to become upset. The caseworker also stated that, after visitation or phone calls with the mother, the children's behavior with their foster parents or other children would become worse and the children would hurt other children at school. The caseworker offered techniques to help the mother with her parenting and disciplining the children, but the mother generally failed to implement the suggestions. Although the mother completed a basic level parenting class, she has been resistant in following the caseworker's recommendations in pursuing a higher level parenting class. According to the caseworker, the mother lacked insight as to why the children were in foster care and failed to understand what she needed to do to get the children out of foster care.

         A case manager for petitioner similarly testified that the mother had yet to acknowledge that she understood why the children were placed in foster care. The case manager also stated that, despite completing some anger management and parenting classes, the mother has not benefitted from such services inasmuch as she becomes "very frustrated when the [children] do not respond to her directions." According to the case manager, the mother has not attended some of the children's medical ...


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