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In re Jessica U.

Supreme Court of New York, Third Department

July 20, 2017

In the Matter of JESSICA U. et al., Alleged to be Permanently Neglected Children. CHEMUNG COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; STEPHANIE U., Appellant.

          Calendar Date: June 2, 2017

          A. Renee Sutton, Elmira, for appellant.

          Donald S. Thomson, Chemung County Department of Social Services, Elmira, for respondent.

          Holly Mosher, Ithaca, attorney for the children.

          Pamela Doyle Gee, Big Flats, attorney for the child.

          Before: Peters, P.J., Garry, Egan Jr., Rose and Mulvey, JJ.


          Mulvey, J.

         Appeal from an order of the Family Court of Chemung County (Hayden, J.), entered January 25, 2016, which partially granted petitioner's application, in a proceeding pursuant to Social Services Law § 384-b, to adjudicate five of the subject children to be permanently neglected, and terminated respondent's parental rights as to Jaylah U., Jamal U. and Julie U.

         Respondent is the biological mother of six children born between 2000 and 2014: Jessica U. (born in 2000), Justine U. (born in 2005), Jacobryan U. (born in 2007), Julie U. (born in 2009), Jamal U. (born in 2011) and Jaylah U. (born in 2014) [1]. Respondent, who has been involved with petitioner since the birth of the oldest child in 2000 and more intensively since 2011, consented to findings of neglect as to the five oldest children in 2011, including Jamal after he was born in 2011. The children were removed from respondent's care and custody and gradually transitioned back to residing with respondent in 2012 but, in early 2013, were again removed and placed in petitioner's care pursuant to an amended neglect petition; the children, with the exception of the oldest, have remained in petitioner's care and custody since 2013. In 2014, after the birth of Jaylah, a finding of derivative neglect was made as to her. Petitioner commenced this permanent neglect proceeding in 2015 [2] seeking to terminate respondent's parental rights alleging that, despite its extensive efforts over the course of many years, respondent has failed for a period of more than one year to substantially and continually or repeatedly plan for the children's future, has been resistant to petitioner's efforts and failed to follow or benefit from treatment, services and programs.

         In December 2015, following a lengthy fact-finding hearing, Family Court returned the oldest child, then age 15, to respondent's care and made findings of permanent neglect as to the other five children. After a dispositional hearing, the court ordered a one-year suspended judgment with respect to Justine and Jacobryan, [3] terminated respondent's parental rights as to the three youngest children - Julie, Jamal and Jaylah - and issued orders of protection that barred respondent from contacting them. Respondent now appeals, challenging the finding of permanent neglect as to the five children and the termination of parental rights as to the three youngest children.

         Social Services Law § 384-b (7) (a) defines a permanently neglected child as a child who is in the care of an authorized agency and whose parent has failed, for a period of more than one year following the date such child came into the care of an authorized agency, substantially and continuously or repeatedly to maintain contact with or 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 (see Matter of Star Leslie W., 63 N.Y.2d 136, 140 [1984]). Where, as here, petitioner seeks to terminate parental rights on the ground of permanent neglect, it must "establish, by clear and convincing evidence, that it has made diligent efforts to encourage and strengthen the parent's relationship with the children" (Matter of Alexander Z. [Jimmy Z.], 149 A.D.3d 1177, 1178 [2017]; see Social Services Law § 384-b [7] [a]; Matter of Hailey ZZ. [Ricky ZZ.], 19 N.Y.3d 422, 429 [2012]). "To satisfy this duty, [the agency] must make practical and reasonable efforts to ameliorate the problems preventing reunification and strengthen the family relationship by such means as assisting the parent with visitation, providing information on the child[ren]'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 [2014] [citations omitted]).

         Contrary to respondent's claims, petitioner demonstrated that it made diligent efforts to address her many problems that led to the children's removal, and to encourage and strengthen their relationships. Indeed, as Family Court aptly noted, petitioner offered an "astounding" array of services dating back to 2011 (and earlier) and during the year preceding this petition, including numerous referrals for mental health and family counseling, a variety of parenting classes addressing skills with regard to different aged children and their behavioral problems and regular visitation assistance. Respondent was supplied with multiple forms of transportation support, and petitioner arranged assistance with housing, household management, phone service, school enrollment and obtaining medical care, as well as medication management and safety and fire prevention plans and support. Household cleaning and safety training, psychological testing, protective parenting programs and domestic violence training were made available. Respondent received training to support her need to co-parent with foster parents and to build her skills to ensure that inappropriate persons were not in the home, and was provided day care referrals, respite care, counseling after violent altercations with the oldest child and communication building assistance. Respondent was also afforded special programs to address the serious behavioral and emotional problems of several of the children, and sometimes refused to sign the necessary consent forms for their treatment or medication. Testimony was offered by caseworkers, social workers, program providers, visitation supervisors, court-appointed special advocates, family counselors and mental health service providers, all establishing that respondent was repeatedly offered abundant services, support, education and programs to address her parental shortcomings and the needs of her children.

         The record reflects that virtually every aspect of respondent's parenting, household and children's problems was addressed using a variety of approaches, programs and providers that were appropriately tailored to her needs and circumstances. While respondent did not appreciably benefit from or meaningfully improve following these efforts, petitioner was obligated to "only make reasonable efforts, and it will be deemed to have fulfilled its obligation if appropriate services are offered but the parent refuses to engage in them or does not progress" (Matter of Everett H. [Nicole H.], 129 A.D.3d 1123, 1126 [2015] [internal quotation marks and citation omitted]; see Matter of Sheila G., 61 N.Y.2d 368, 385 [1984]). Accordingly, we find that Family Court's threshold determination that petitioner discharged its duty to make diligent efforts is fully supported by the record (see Matter of Alexander Z. [Jimmy Z.], 149 A.D.3d at 1178-1179; Matter of Aniya L. [Samantha L.], 124 A.D.3d 1001, 1004 [2015], lv denied 25 N.Y.3d 904');">25 N.Y.3d 904 [2015]).

         We are similarly unpersuaded by respondent's argument that petitioner never proved that she failed to plan for the future of her children (see Social Services Law § 384-b [7] [a]). In determining whether respondent planned for the future of her children, the relevant inquiry is whether she took "such steps as [were] necessary to provide an adequate, stable home and parental care for the child[ren] within a period of time which [was] reasonable under [her] financial circumstances[, and whether her plan was] realistic and feasible, " mindful that "good faith effort [is] not, of itself, ... determinative" (Social Services Law § 384-b [7] [c]). Further, "the court may consider [respondent's] failure... to utilize medical, psychiatric, psychological and other social and rehabilitative services and material resources made available" (Social Services Law § 384-b [7] [c]). Importantly, while respondent maintained contact with the children and attended or completed countless offered services and supervised visits, "[m]ere participation in classes and programs is not enough to meet this requirement when a parent does not benefit from the services[, programs and support] offered and utilize the tools or lessons learned in those classes in order to successfully plan for the child[ren]'s future" (Matter of Aniya L. [Samantha L.], 124 A.D.3d at 1004 [internal quotation marks and citation omitted]). To that end, Family Court noted that, even after years of extensive services during which the children were in and out of foster care since 2011, "very little has changed in... respondent's life over the last few years." The record reflects that she had not made sufficient progress to permit the safe return of the five younger children to her care and custody or even to appropriately manage the children during supervised visitations. Respondent continued to be periodically combative, hostile and uncooperative with petitioner ...

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