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In re Kaylee JJ.

Supreme Court of New York, Third Department

March 1, 2018

In the Matter of KAYLEE JJ. and Another, Alleged to be Permanently Neglected Children.

          Cliff Gordon, Monticello, for appellant.

          Amy B. Merklen, Delaware County Department of Social Services, Delhi, for respondent.

          Lisa A. Natoli, Norwich, attorney for the children.

          Before: McCarthy, J.P., Lynch, Devine, Clark and Rumsey, JJ.


          Lynch, J.

         Appeals (1) from an order of the Family Court of Delaware County (Burns, J.), entered February 2, 2016, which granted petitioner's application, in a proceeding pursuant to Social Services Law § 384-b, to adjudicate the subject children to be permanently neglected, and (2) from an order of said court (Rosa, J.), entered April 12, 2016, which terminated respondent's parental rights.

         Respondent is the mother of two children (born in 2007 and 2009). In 2013, respondent consented to a finding of neglect and removal and placement of the children with the paternal grandfather after she was arrested and incarcerated for threatening to kill the children and to blow up their school via several posts to a social media account. As a result of this conduct, an order of protection on behalf of the children was issued, and the mother was prohibited from any contact with the children.

         In April 2014, while respondent remained incarcerated, the children were removed from the paternal grandfather's home and placed in foster care. Petitioner commenced this proceeding against the mother for permanent neglect. In February 2016, after a fact-finding hearing, Family Court (Burns, J.) determined that respondent permanently neglected both children. Following a dispositional hearing, Family Court (Rosa, J.) terminated respondent's parental rights. Respondent now appeals. [1]

         A permanently neglected child is one "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" (Matter of Landon U. [Amanda U.], 132 A.D.3d 1081, 1084 [2015]; see Social Services Law § 384-b [7] [a]). "[T]o terminate parental rights on the ground of permanent neglect, a petitioner must first 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 Walter DD. [Walter TT.], 152 A.D.3d 896, 897 [2017], lv denied 30 N.Y.3d 905');">30 N.Y.3d 905 [2017]). A diligent effort is one that is "practical and reasonable" and designed "to ameliorate the problems preventing reunification and strengthen the family relationship" (Matter of Jessica U. [Stephanie U.], 152 A.D.3d 1001, 1002-1003 [2017] [internal quotation marks and citation omitted]). If this threshold burden is met, the issue becomes "whether respondent substantially planned for the child[ren's] future" (Matter of Marcus BB. [Donna AA.], 130 A.D.3d 1211, 1212 [2015]).

         We find that Family Court (Burns, J.) properly determined that petitioner made diligent efforts to strengthen the relationship between respondent and the children. It was not disputed that, because she threatened to kill her children and, in association with these threats, posted photographs of murdered children on social media, respondent was convicted of falsely reporting an incident in the first degree and sentenced in 2013 to six months in prison and five years of probation. After respondent was released to probation, she violated her probation by possessing a cell phone and texting other people - including a sex offender - who were serving probation. Consequently, respondent was incarcerated from June 2014 through September 2015. Where a parent is incarcerated, petitioner's obligation to make diligent efforts "may be satisfied by informing the parent of the children's well-being and progress, responding to the parent's inquiries, investigating relatives suggested by the parent as placement resources, and facilitating communication between the children and the parent [as appropriate]" (Matter of Britiny U. [Tara S.], 124 A.D.3d 964, 966 [2015] [internal quotation marks and citation omitted]; see Matter of Arianna I. [Roger I.], 100 A.D.3d 1281, 1285 [2012]).

         Petitioner's caseworker testified that while respondent was incarcerated, she wrote "absent parent letters" to apprise respondent of the children's progress, to request that respondent "engage in any services available at the jail" and to remind respondent that she had to work with petitioner to plan for the children's future. Due to the order of protection in place, respondent could not facilitate any communication or visits with the children. In response, respondent advised that the maternal grandmother could be a suitable resource for the children. Petitioner did investigate this suggestion, but determined that it was not viable and the maternal grandmother would not be able to care for the children. Under these circumstances, we agree with Family Court's determination that the evidence established, by clear and convincing evidence, that petitioner engaged in diligent efforts to encourage and strengthen respondent's relationship with the children (see Matter of Walter DD. [Walter TT.], 152 A.D.3d at 897-898; Matter of Jazmyne II. [Frank MM.], 144 A.D.3d 1459, 1460 [2016], lv denied 29 N.Y.3d 901');">29 N.Y.3d 901 [2017]; Matter of Marquise JJ. [Jamie KK.], 91 A.D.3d 1137, 1138 [2012], lv denied 19 N.Y.3d 801');">19 N.Y.3d 801 [2012]; Matter of Joseluise Juan M., 302 A.D.2d 219, 219-220 [2003], lv denied 100 N.Y.2d 508');">100 N.Y.2d 508 [2003]).

         Next, we find that Family Court properly determined that respondent failed to substantially plan for the children's future. To assess whether a parent has fulfilled this obligation, "the court may consider the failure of the parent to utilize medical, psychiatric, psychological and other social and rehabilitative services and material resources made available to such parent" (Social Services Law § 384-b [7] [c]). "[A] parent must, at a minimum, take meaningful steps to correct the conditions that led to the child[ren's] initial removal from the home" (Matter of Alexander Z. [Jimmy Z.], 149 A.D.3d 1177, 1179 [2017] [internal quotation marks and citation omitted]).

         Respondent testified that she began taking medication, sought mental health services and completed parenting, anger management and general business courses while she was incarcerated. It is not enough, however, to simply participate in available programs; rather, a parent must demonstrate that he or she "benefit[ted] from the services, programs and support offered and utilize[d] the tools or lessons learned in those classes in order to successfully plan for the children's future" (Matter of Jessica U. [Stephanie U.], 152 A.D.3d at 1004 [internal quotation marks, brackets and citations omitted]). When asked to detail the type of services that she received and the content of the courses, respondent was unable to recall anything substantive and, at times, she simply ignored questions and instead remained silent for prolonged periods. Respondent never sought to amend the order of protection to allow her to have some contact with the children and, even after being advised that petitioner did not approve the maternal grandmother's residence for the children, respondent made no attempt to offer an alternative plan. In our view, there was ample evidence to support Family Court's determination that respondent permanently neglected the subject children (see generally Matter of Walter DD. [Walter TT.], 152 A.D.3d at 898; Matter of Zoey O. [Veronica O.], 147 A.D.3d 1227, 1229-1230 [2017]).

         We reject respondent's argument that Family Court (Rosa, J.) should have issued a suspended judgment instead of terminating her parental rights. Such disposition "may be issued if it is in the best interests of the child[ren] to allow the parent additional time to improve parenting skills and demonstrate his or her fitness to care for the child[ren]" (Matter of Madalynn I. [Katelynn J.], 111 A.D.3d 1205, 1206 [2013] [internal quotation marks and citations omitted]). During a dispositional hearing, the issue is the children's best interests and, ...

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