Reported Decisions Regarding Permanent Neglect


IN RE ANTHONY P., Appellate Division, First Department.  The determination that the agency exercised diligent efforts to support reunification of respondent and her child was supported by clear and convincing evidence that the agency provided respondent with a service plan and referrals tailored to her needs and clear and convincing evidence supports the determination that respondent permanently neglected the child.  A preponderance of the evidence demonstrates that the child's best interests are served by terminating respondent's parental rights

IN RE JOVANY ISAAC BENJAMIN M.,  Clear and convincing evidence supported the court's determination that respondent mother permanently neglected her child.  Although the agency diligently endeavored to encourage a meaningful relationship between mother and child by, inter alia, arranging for visitation referring respondent for services and providing her guidance in finding suitable housing, respondent failed to offer a viable plan for the child's future.  A fair preponderance of the evidence demonstrated that termination of her parental rights so as to facilitate adoption, rather than suspending judgment, was in the child's best interests.

IN RE KAYLINA DESIRE SHONTE J., Appellate Division, First Department.  Termination of parental rights is amply supported by the record, which reveals diligent efforts by the agency to encourage the parental relationship and provide numerous services, despite respondent's noncooperation and indifference.

IN RE RACQUEL OLIVIA M.
, Appellate Division, First Department. The court's finding of permanent neglect was supported by clear and convincing evidence that respondent failed during the statutorily relevant period to meaningfully avail herself of the services deemed essential to prepare her to assume custodial parenting responsibilities.  The evidence at the dispositional hearing was preponderant that termination of respondent's parental rights to facilitate the children's adoption by their foster mother was in the children's best interests.

IN RE ANTONIA MYKALA P., Appellate Division, First Department.  The agency developed a realistic plan tailored to the father's needs, which included the goal of ultimately reuniting with the child, all of which satisfied its obligation to make diligent efforts to encourage and strengthen the parental relationship. The fact-finding determination of permanent neglect was supported by clear and convincing evidence that the father did not realistically plan for the child's future. Termination of parental rights, in order to facilitate the adoption process, is in the best interests of the child, and is supported by the requisite preponderance of the evidence.
    
IN RE ADALIZ MARIE R., Appellate Division, First Department.  The permanent neglect findings are supported by clear and convincing evidence that petitioner made diligent efforts to assist a meaningful relationship between respondent and her children and that, despite these efforts, respondent failed to plan for the children's future. Petitioner's efforts included providing numerous referrals to programs tailored to respondent's changing needs and consistently following up with respondent on such critical goals as completing a mental health evaluation and domestic violence counseling.

IN RE MARK ERIC R., Appellate Division, First Department.  The finding of permanent neglect is supported by clear and convincing evidence of respondent's failure to learn to control her anger, to cooperate with the agency in providing home visits and proof of income, and to attend most of the children's educational and medical appointments, and her refusal to accept guidance on proper parenting, the diligent efforts of petitioner and the previous agency notwithstanding.  The determination that termination of respondent's parental rights is in the best interests of the children is supported by a preponderance of the evidence. Respondent's claim that she was prejudiced by the suspension of visitation with the children during the dispositional phase of the proceedings is unavailing.

IN RE SKYLER S. M., Appellate Divsision, First Department.  The finding of permanent neglect was supported by clear and convincing evidence of the mother's failure to plan for the child's future, notwithstanding the agency's diligent efforts.  A preponderance of the evidence established that termination of the mother's parental rights to facilitate adoption was in the child's best interests

IN RE DAMON BRUCE W., Family Court's determination that the mother permanently neglected the child was supported by clear and convincing evidence. The record is replete with clear and convincing evidence that the agency exercised diligent efforts to strengthen the mother's relationship with the child.  Those efforts included, among other things, furnishing the mother with a service plan tailored to her individualized needs and diligently fostering her reunification with the child by providing her with visitation, notice of the child's medical appointments, and referrals to various support and treatment programs.  Additionally, a preponderance of the evidence demonstrates that the child's best interests are served by terminating the mother's parental rights.

IN RE JOAQUIN ENRIQUE C., III, Appellate Division, First Department.  Clear and convincing evidence established that the agency satisfied its threshold statutory obligation of making diligent efforts to encourage and strengthen the parental relationship by arranging regular visits, referring the mother to parenting skills classes for special needs children, a CPR course and individual therapy, and monitoring her progress.  Clear and convincing evidence also established that appellant failed to plan for the child's future.  In addition, the mother failed to plan for the child's future due to her lack of awareness of the severity of his injuries and her failure to take an active role in implementing his various therapies.   A preponderance of the evidence established that terminating her parental rights would be in the child's best interests.

IN RE DAVIONE RASHAUN H.
, Appellate Division, First Department.  The finding of permanent neglect is supported by clear and convincing evidence.  The record shows that the agency made diligent efforts to encourage and strengthen the parental relationship by providing referrals for individual counseling and parenting skills training, scheduling regular supervised visitation and monitoring the treatment programs in which respondent stated she was enrolled. Despite these diligent efforts, respondent was incarcerated on several occasions, inconsistent in her visitation, failed to complete the substance abuse program during the statutorily relevant time period and otherwise failed to meaningfully address the problems that led to the placement of her child.  A preponderance of the evidence demonstrated that termination of respondent's parental rights was in the child's best interests.  

IN RE ARELIS JASMIN L.
, Appellate Division, First Department.  There was clear and convincing evidence that despite petitioner's diligent efforts to strengthen the parental relationship, respondent mother permanently neglected her daughters by failing to plan for their future, particularly by failing to attend therapy consistently, and by refusing to accept the finding that her brother had sexually abused her oldest daughter when the child was seven years old or acknowledge her own responsibility to protect her children from the risk of future abuse. A preponderance of the evidence supported termination of parental rights based upon the best interests of the children. 

IN RE RAEKWON MAXX A., Appellate Division, First Department.  The finding of permanent neglect was supported by clear and convincing evidence that the agency made diligent efforts to encourage and strengthen the parental relationship by appropriate referrals and regularly scheduled planning meetings and visitation, but that respondent thwarted the agency's goals by failing to take responsibility for the impropriety of actions that placed the child in danger and failing to learn to control her increasingly volatile anger, and that the interests of this child are best served by terminating respondent's parental rights in order to facilitate the child's adoption.

IN RE JAIHEEM M.S., Appellate Division, First Department.  The determination of permanent neglect was supported by clear and convincing evidence that respondent failed to plan for her children's future by demonstrating the ability to address adequately their medical and emotional needs, or availing herself of parenting classes addressed to the special needs of one of them. The fact that she completed some of the programs does not indicate, under these circumstances, that she properly planned for her children's return.  A prepondcerance of the evidence supports the determination that termination of parental rights to facilitate the adoptive process is in the best interests of both of these children.

IN RE DANTE DEVON A., Appellate Division, First Department.  Clear and convincing evidence supported the determination that the father permanently neglected the subject child by failing to plan for his future despite the agency's diligent efforts to encourage and strengthen the parental relationship. The record shows that the father failed to adhere to the service plan, submit to drug testing, visit the child regularly, and obtain the necessary training to properly care for the child's medical condition. Notably, it was the failure to properly attend to the child's medical condition that prompted placement of the child in foster care. An agency that demonstrates its diligence, but faces an uncooperative parent, is deemed to have fulfilled its duty. The evidence at the dispositional hearing was preponderant that the best interests of the child would be served by terminating the father's parental rights so as to facilitate the child's adoption.

IN RE KHALIL A.,  The finding of permanent neglect is supported by clear and convincing evidence of respondent's failure for the relevant time period to plan for the future of the children, despite petitioner's diligent efforts to encourage and strengthen the parental relationship between respondent and the children. In particular, the record shows that petitioner met regularly with respondent to prepare a service plan and review her progress, arranged visitation between respondent and the children, and assisted respondent with housing, and that, these efforts notwithstanding, respondent failed to attend individual therapy or address the mental condition that led to the children's placement.  A preponderance of the evidence supports the determination that it is in the best interests of the children to terminate respondent's parental rights.

IN RE DYNASIA C., Clear and convincing evidence supports the finding that respondent permanently neglected her daughter. The agency exercised diligent efforts to encourage and strengthen the parental relationship by formulating a service plan, arranging regularly scheduled visitation with the child, and referring respondent to a parenting skills course, housing assistance, and a GED program. Despite the agency's efforts, respondent failed to maintain contact with the child through consistent and regular visitation, and failed to obtain adequate housing and a stable source of income. A preponderance of the evidence supports the finding that it is in the child's best interests to terminate respondent's parental rights so as to free the child for adoption.

MATTER OF CHELSEA C.
, Appellate Division, First Department.  The agency demonstrated by clear and convincing evidence that it exerted diligent efforts to encourage and strengthen the parental relationship by referring respondent for appropriate therapy and a parenting skills class in her native language. Respondent, a nonoffender coping with sexual abuse, elected to ignore the court's directive that she be referred for counseling with a therapist trained in sexual abuse cases and instead selected a therapist with limited training in that area. She also chose to attend a parenting skills class in English, although she required a Spanish translator in court proceedings. Respondent failed to demonstrate that she took reasonable steps to correct the conditions that led to the children's placement.  The record supports the court's determination that the best interests of the children would be served by terminating respondent's parental rights and freeing the children for adoption.

IN THE MATTER OF JOSHUA JEZREEL M., Appellate Division, First Department.  The finding of permanent neglect is supported by clear and convincing evidence that petitioner exercised diligent efforts to encourage and strengthen the parental relationship between respondent and the child by scheduling visitation and discussing with respondent the service plan and programs he needed to complete to have his child returned to him, and that, these efforts notwithstanding, between October 2007 and April 2008, respondent did not maintain contact with the agency, visit the child or send him letters, cards, or gifts, or pay child support. Determination that it was in the child's best interests to be freed for adoption affirmed.

IN THE MATTER OF SHAIANNA MAE F., Appellate Division, First Department. The finding of permanent neglect was supported by clear and convincing evidence. The record demonstrates that the agency made diligent efforts to encourage and strengthen the parental relationship, including, the arrangement of frequent visitation with the child, the referral for individual and group domestic violence therapy sessions, consultation and cooperation with respondent in an attempt to develop a plan for appropriate services for the child, and the provision of counseling services. Despite these diligent efforts, respondent failed to adequately address the problems that led to the removal of her daughter.  A preponderance of the evidence supports the determination that termination of parental rights to facilitate the adoptive process is in the best interests of the child.       

IN THE MATTER OF NATALIE MARIA D., Appellate Division, First Department.  The agency demonstrated by clear and convincing evidence that it made diligent efforts to assist respondent to reunite with the child and that respondent rejected assistance in obtaining housing, although he was continually unable on his own to find a suitable place to live with the child, and refused to plan for the return of the child separately from the mother, despite his stated understanding that the child was not safe in the mother's care.

IN THE MATTER OF ANIYA EVELYN R., Appellate Division, First Department.  The finding of permanent neglect was supported by clear and convincing evidence. The record establishes that petitioner agency made diligent efforts to encourage and strengthen the parental relationship including the development of a service plan; the scheduling of multiple service plan reviews; the scheduling of visitation; repeated attempts to encourage respondent's compliance with the service plan requirements; and the provision of referrals for services. Despite these diligent efforts, respondent failed to complete the requisite drug treatment program, tested positive and refused to submit to drug screens on multiple occasions, missed the majority of the scheduled visits with the children and failed to complete a parenting skills program. There exists no basis to disturb the court's credibility determinations.

IN THE MATTER OF ELIJAH JOSE S., Appellate Division, First Department.  The finding of permanent neglect was supported by clear and convincing evidence of respondent's failure to maintain contact with the children and plan for their future, notwithstanding the agency's diligent efforts. Although the agency arranged for weekly visitation, respondent's appearances were sporadic, and he has not visited the children since December 2007. He also failed to comply with all random drug test requests, failed to complete a court-directed psychological evaluation, and commenced but failed to complete a substance abuse and parenting skills course. Finally, he developed no plan for the children's future, despite the agency's diligent efforts to assist him.  A preponderance of the evidence established that termination of respondent's parental rights was in the children's best interests.

IN THE MATTER OF AISHA C., Appellate Division, First Department.  The finding of permanent neglect was supported by clear and convincing evidence of respondent's failure to plan for the child's future, notwithstanding the petitioning agency's diligent efforts. The agency referred respondent for alcohol abuse treatment, mental health services and parenting skills training, provided letters to assist her in having her name added to the lease on the apartment she shared with her adult son, scheduled weekly visitation, changed the visitation location to accommodate her, and met with her to review her service plan and discuss the importance of compliance. Respondent failed to maintain contact with the child through consistent and regular visitation, which alone constitutes permanent neglect. In addition, respondent failed to complete mental health and alcohol abuse programs, attend a parenting skills class, and secure adequate housing after her attempt to be added to her son's lease proved unsuccessful. A preponderance of the evidence supported the finding that it was in the child's best interests to terminate respondent's parental rights and transfer custody and guardianship of the child to the agency and free her for adoption.

IN THE MATTER OF VALENTINO G.
, Appellate Division, First Department.  The evidence that respondent could not care for the child, that he had a pattern of relapsing during drug treatment, that the child would have to leave his foster home eventually, and that termination of respondent's parental rights would permit petitioner to photo list the child, thereby enhancing its ability to locate a pre-adoptive home for him, supports the court's finding that termination of respondent's parental rights was in the child's best interests.  That the child's chances of being adopted may not be high does not preclude a finding that termination is in his best interests. Moreover, a suspended judgment is "a brief grace period designed to prepare the parent to be reunited with the child", not the indefinite grace period respondent apparently seeks. In view of the agreement among petitioner agency, the foster mother and the law guardian to permit respondent to visit with the child, we see no need to grant respondent's alternative request for an order of post-termination visitation

MATTER OF KIMBERLY C., Appellate Division, First Department.  Clear and convincing evidence supported the determination that the parents permanently neglected the subject child by failing to plan for her future despite the agency's diligent efforts to encourage and strengthen the parental relationship. The record clearly demonstrates that although the parents were aware of the need for, among other things, domestic violence counseling, they stood as an obstacle to such counseling by incredibly and repeatedly denying the need for such intervention. The parents' attendance at counseling programs was insufficient, given their failure to gain insight, accept responsibility and modify their behavior. Moreover, respondent father failed to complete an alcohol abuse program, denying any problem in the face of clear evidence to the contrary. Finally, despite the agency's diligent scheduling efforts, the parents' visits with the child were, at best, sporadic. The court properly found that the child's best interests were served by terminating respondents' parental rights, freeing her for adoption.

IN RE EDDIE CHRISTIAN S., The findings of permanent neglect were supported by clear and convincing evidence. The agency made diligent efforts to encourage and strengthen the parental relationship, which included advising respondent of the need to find a resource for the care of his children and exploring the resources he suggested, keeping him apprised of the children's progress, and arranging for visitation between the children and respondent while he was incarcerated within the state. When respondent was transferred to an out-of-state facility, it was reasonably determined that visits were not feasible due to the young ages of the children. Despite the diligent efforts of the agency, respondent failed to plan for his children's future, as the multiple familial resources he offered as alternatives to adoption were considered and correctly found not viable.  Termination of Parental Rights in children’s best interests.

IN RE JONATHAN JOSE T., There was clear and convincing evidence to support the Family Court's determination that despite the agency's diligent efforts, respondent permanently neglected her children. Although respondent visited her children up until June 2004, she missed 19 visits in a seven-month period, and the quality of the visits was poor. In any event, visitation does not preclude a finding of permanent neglect where, as here, there has been a failure to plan for the children's future. Indeed, the record demonstrates that although the agency referred respondent for a mental health evaluation and made numerous attempts to assist her in obtaining suitable housing, she failed to avail herself of these services. The court also properly found that the best interests of the children would be served by terminating respondent's parental rights.

IN RE TODD ANDRE’ D., The Family Court properly determined that there was clear and convincing evidence that the mother permanently neglected the subject child by failing, for a year following the child's entrance into foster care, to plan for his return. The petitioner made diligent efforts to help the mother comply with her service plan, which required the mother, to complete a parenting skills class for special needs children, to complete individual and family therapy, and to maintain regular visits with the child. Moreover, the Family Court properly determined that termination of the mother's parental rights was in the child's best interest.

Reported Decisions Regarding Violation of Suspended Judgment


IN RE ALIYAH CAREEMA D., The finding that respondent violated the terms of the suspended judgment is supported by a preponderance of the evidence. . Respondent was required, inter alia, to submit to random drug testing and remain free of illicit substances, maintain regular and consistent supervised visitation, and obtain and maintain a source of income and suitable housing for herself and the child. Shortly after the suspended judgment was granted, respondent was convicted of criminal sale of a controlled substance and sentenced to 2½ years' incarceration. Respondent failed to maintain contact with the child for four months after she was incarcerated, which failure is not excused by her incarceration.  The finding that termination of respondent's parental rights is in the child's best interests is supported by a preponderance of the evidence showing that respondent would remain incarcerated until after the period of the suspended judgment had expired, and that the child's kinship foster mother has been providing quality care for the child, wants to adopt her, and has been trained to handle her special needs

IN RE CHRISTIAN ANTHONY Y.T., Appellate Division, First Department.  A preponderance of the evidence supported the court's finding that the mother violated the terms of the suspended judgment, and that termination of her parental rights was in the children's best interests.  The record demonstrates that notwithstanding the mother's efforts to comply with the technical terms of the suspended judgment, her emotional and cognitive limitations rendered her unable to meaningfully comply with the terms and goals of the suspended judgment. The decision of the agency to seek revocation of the suspended judgment within three months of its entry was proper, and the mother's contention that she was not afforded sufficient time to show progress towards reunification under the suspended judgment is unavailing. The burden rested with the mother at all times to show progress during the period of the suspended judgment, as well as compliance with the suspended judgment's terms. Even lapses by an agency during a suspended judgment do not relieve a parent of his or her duty to comply with the terms of the suspended judgment.

Reported Decisions Regarding Abandonment


IN RE SHAVENON EDWIN N., ALSO KNOWN AS BABY BOY N.
, Appellate Divsion, First Department.  The parents admit that they did not have any contact with the subject child during the six-month period prior to the filing of the petition to terminate their parental rights.  The determination to commit custody of the child to the foster mother was well supported by the record.

IN RE CHRISTIE A. M., Appellate Division, First Department.  With respect to the male child, the finding of abandonment is supported by clear and convincing evidence that during the six-month period immediately preceding the filing of the petition, respondent, who at all relevant times has been serving a lengthy prison sentence, had no contact whatsoever with that child. With respect to the female child, while there was conflicting testimony as to when and how often respondent telephoned her, Family Court, crediting portions of the testimony of both respondent and the first foster parent, found that respondent telephoned at most once or twice a week during the first five or six weeks of the abandonment period, for a total of five to ten calls, after which the first foster parent, respondent's aunt, and then her successor, the aunt's daughter, stopped accepting respondent's collect calls from prison, and that respondent had no further contact with either the child or the agency during the abandonment period. Even if, contrary to Family Court's finding, we were to accept respondent's assertion that, unable to make telephone contact with the child, he wrote several letters to her, any such letter-writing, considered along with the five or ten phone calls, constituted contact too sporadic and insubstantial to avoid the presumption of abandonment.

Reported Decisions Regarding Mental Illness/Mental Retardation


IN RE JAMIAH SHARANG C.
, Appellate Division, First Department.  Clear and convincing evidence, including medical records and uncontroverted expert testimony, supports the finding that respondent is presently and for the foreseeable future unable, by reason of mental illness, to provide proper and adequate care for her child.

IN RE PHAJJA JADA S., Determination that the mother is mentally ill and is presently and for the foreseeable future unable to care properly and adequately for the child is supported by clear and convincing evidence that the mother has repeatedly been diagnosed with schizoaffective disorder.  Even if there were a doubt as to that particular diagnosis, as the mother contends there is, the agency met its burden of demonstrating the mother's mental illness in its "totality".

IN RE MITCHELL RANDELL K., Expert testimony established by clear and convincing evidence that respondent is presently and for the foreseeable future unable, by reason of mental illness, to provide proper and adequate care for her children.  Indeed, respondent has suffered from severe mental illness for approximately 15 years, characterized by a recurring cycle of psychiatric hospitalizations and failure to take prescribed medication. Not only has she been unable to function meaningfully for almost her entire adult life, but she is incapable of caring adequately for her children at the present time, and there is no prospect that she will be able to do so in the foreseeable future.

IN THE MATTER OF SHANTA C., Appellate Division, First Department.  Respondent's argument that the court erred in terminating her parental rights upon a finding of mental illness where the testifying psychologist was never expressly qualified by the court as an expert witness is unpreserved as it is raised for the first time on appeal.  Were we to review the issue, we would find that the requirements of Social Services Law § 384-b (6) (e) were met since the testifying psychologist, although not formally qualified by the court as an expert, was appointed by the court to conduct an examination of respondent and testify as to her findings, was identified on the record as a senior psychologist at a facility that routinely conducts evaluations of parties in Family Court proceedings, and testified as to respondent's mental illness without objection.  Clear and convincing evidence supports the court's finding that respondent, by reason of her mental illness, is unable, at present and for the foreseeable future, to provide proper and adequate care for the subject child.

IN THE MATTER OF DOMINIQUE R., Appellate Division, First Department. Petitioner proved, by clear and convincing evidence, that respondent is presently and for the foreseeable future unable, by reason of mental illness, to provide proper and adequate care for her daughter. While respondent's expert witness testified to the possibility that in a year's time, with intensive psychotherapy, she would be able to care for the child, he acknowledged that despite her psychiatric history, respondent had never undergone such therapy and had declined to follow prior recommendations to do so. The mere possibility that respondent might be capable of providing adequate care at some indefinite point in the future does not warrant the denial of the petition.

Reported Decisions Regarding Vacating Default


IN RE BIBIANAMIETL.-M., Appellate Division, First Department.  The Family Court properly exercised its discretion in denying respondents' motions to vacate their default in appearing on September 9, 2008 as they failed to demonstrate a reasonable excuse for the default and a meritorious defense to the abandonment cause of action.

IN RE BRITTANY ANNETTE M., The mother's motion to vacate her default was properly denied because she failed to present a reasonable excuse for her failure to appear for the fact-finding and dispositional hearings and a meritorious defense to the petition to terminate her parental rights.

IN RE ALEXANDER JOHN B., Family Court properly exercised its discretion in denying appellant's motion to vacate the orders terminating her parental rights upon her default because her moving papers failed to demonstrate a reasonable excuse for her absence from the court proceeding and a meritorious defense to the abandonment allegation.  The post-termination change in the children's foster situation does not warrant remitting the matter to Family Court for a new dispositional hearing to consider whether terminating appellant's parental rights is still in the children's best interests

IN THE MATTER OF CIARA LEE C., Appellate Division, First Department. Respondent's vacatur motion was properly denied on the ground that she failed to demonstrate a reasonable excuse for her belated appearance when she was aware of the date for the fact-finding and dispositional hearing almost three months earlier, took no steps to ascertain the time she was required to appear in court, and failed to notify the court or her attorney that she was going to her methadone program before she was due in court and that she was delayed. The motion was properly denied on the additional ground that respondent failed to demonstrate a meritorious defense to the neglect petition in that she provided no evidence that she was drug-free almost four years after her child was removed due to her drug use.

MATTER OF GLORIA MARIE S., Appellate Division, First Department.  Appellant's motion to vacate his default was properly denied because he failed to present a reasonable excuse for his failure to appear for the fact-finding and dispositional hearings and a meritorious defense to the petition to terminate his parental rights. The proffered excuse was that he had also missed a prior appearance on at which the date in question was set, and neither his attorney nor the court notified him of the adjourned date. His reason for failing to attend the prior court date, of which he concededly had notice—lack of funds for travel from Brooklyn to the Bronx—is unsubstantiated and thus insufficient as a reasonable excuse for vacating a default/  Even if lack of funds had been the true reason for his failure to appear on the prior date, he provided no reason why he did not advise either his lawyer, the court or the petitioning agency of his inability to attend. Appellant's additional contentions that his attorney lost contact with him following the prior court date and thus was unable to notify him of the date in question adjournment date, that he was homeless as of May 2006, and that because he had received a slip from the court notifying him of an appearance date in the related neglect proceeding scheduled for July 27, 2006, he assumed that the next court date for the termination proceeding would be that date as well, are equally unpersuasive. Assuming appellant had offered a reasonable excuse for his failure to attend the July 11, 2006 proceedings, he nonetheless failed to make the requisite showing that he possessed a meritorious defense to warrant vacatur of his default.

Reported Miscellaneous Termination of Parental Rights Decisions


IN RE CARLOS G., Family Court found that it would not be in the best interest of the child to grant appellant visitation rights during the pendency of the TPR proceedings, since such rights may cease following the proceedings. We find that Family Court's determination was a provident exercise of discretion and was supported by the record.


Prior results do not guarantee a similar outcome.