In the Matter of ALAINA E. and Others, Children Alleged to be Permanently Neglected. BROOME COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; MELINDA E. et al., Appellants.
Appellate Division of the Supreme Court of New York, Third Department
February 19, 2009
59 AD3d 882 | 875 NYS2d 287
Respondent Melinda E. is the mother of Alaina E. (born in 1996), Dakota E. (born in 1997), Kaitlyn D. (born in 1998) and Elizabeth D. (born in 2000), the four children who are the subject of the instant permanent neglect proceeding.1 Respondent Gary D. is the biological father of Kaitlyn and Elizabeth, and resided with all four children during the course of his rela
In June 2006, petitioner initiated this permanent neglect proceeding against respondents seeking to terminate their parental rights. Following fact-finding and dispositional hearings, Family Court granted the petition and terminated respondents’ parental rights. Respondents now appeal.
Initially, we note that “[t]o obtain a termination of parental rights based upon permanent neglect, petitioner is required to prove by clear and convincing evidence that the parent failed to maintain contact with or plan for the future of his or her child for one year after the child came into petitioner‘s custody notwithstanding petitioner‘s diligent efforts to strengthen the parent-child relationship” (Matter of Melissa DD., 45 AD3d 1219, 1220 [2007], lv denied 10 NY3d 701 [2008]; see
Contrary to respondents’ contentions, the record discloses that petitioner undertook diligent efforts to strengthen the parent-child relationship in the case at hand. In accordance with the dispositional order, petitioner devised service plans that made available to respondents parenting classes, mental
Our conclusion is not altered by the fact that petitioner encouraged respondents to attend sex abuse counseling for offenders even though the dispositional order provided that the counseling to be provided was for nonoffenders. Neither Melinda nor Gary had been adjudicated a sexual offender and petitioner‘s directive appears to have been based upon the unsubstantiated reports of two of the children. Even though this particular type of counseling was not appropriate to the situation, petitioner nevertheless proposed sufficient other realistic programs designed to assist respondents in overcoming the problems preventing the return of their children so as to demonstrate that it exercised the necessary diligent efforts required by the statute (see Matter of Lisa Z., 278 AD2d 674, 676-677 [2000]).
“Once an agency has demonstrated that it has made the requisite diligent efforts, the parent must show that his or her problems have been addressed and that there is a meaningful plan for the child‘s future” (Matter of James X., 37 AD3d at 1006 [citation omitted]). This includes, but is not limited to, utilizing available medical, mental, social and rehabilitative services and material resources, as well as providing a stable and adequate home environment (see
With regard to Melinda, evidence was presented that although she also participated in some suggested programs, she voluntarily moved to Clinton County shortly after the children were placed with petitioner and remained there for more than two years. Her priority was remaining in Clinton County with the father of her new baby, even after the baby was adjudicated a neglected child in April 2005 and removed from her care. She stayed with this man, whom she married in November 2006, even though he had a history of involvement with child protective services regarding his own daughter. While she resided in Clinton County, Melinda had sporadic and infrequent contact with the children. She often missed scheduled visitation appointments and, although she complained of transportation problems, she declined petitioner‘s offer of bus passes so that she could visit the children four times a year.
In view of the foregoing, we find that the record contains clear and convincing evidence that respondents failed to realistically plan for their children‘s future so as to facilitate the return of the children to their care (see Matter of Jayde M., 36 AD3d 1168, 1170 [2007], lv denied 8 NY3d 809 [2007]). Accordingly, under the circumstances presented, Family Court properly adjudicated the children to be permanently neglected and terminated respondents’ parental rights. Respondents’ remaining contentions are either unpreserved for our review, or are lacking in merit.
Mercure, J.P., Peters, Kane and Stein, JJ., concur. Ordered that the order is affirmed, without costs.