In re Desirea F.
In the Matter of DESIREA F., a Neglected Child. ST. LAWRENCE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; ANGELA F., Appellant. (And Another Related Proceeding.) [25 NYS3d 385]—
Respondent‘s children include, as relevant to this appeal, a son (born in 2003) and a daughter (born in 2005) (hereinafter collectively referred to as the subject children). Petitioner has been involved with respondent and her children since 2003, and, following findings of neglect by Family Court (Potter, J.), the subject children were removed from her care in December 2007. The subject children have resided for many years in Pennsylvania with foster parents who desire to adopt them. A hearing on permanent neglect petitions commenced in November 2010; however, part of the way through that hearing, those petitions were withdrawn and replaced with petitions seeking to terminate respondent‘s parental rights based on mental illness. Although Family Court granted such petitions, we reversed because of evidentiary errors at the hearing (Matter of Dakota F. [Angela F.], 110 AD3d 1151 [2013], lv denied 22 NY3d 1015 [2013]).1
After such reversal, permanency goals were set as return to parent but, following a permanency hearing in February 2014, Family Court (Morris, J.) issued an order as to each child in June 2014 changing the permanency goal to adoption. By such time, petitioner had again commenced permanent neglect proceedings seeking to terminate respondent‘s parental rights regarding the subject children, and, based upon the record, it appears that such proceedings are still pending. A subsequent permanency hearing was conducted in July 2014, resulting in September 2014 orders that continued the goal as adoption for the subject children. Respondent appealed from the four orders (two on each date) and we consolidated the appeals.2
“At the conclusion of a permanency hearing, Family Court is
We find that the record before us lacks a sound and substantial basis to support Family Court‘s determination to change the permanency goal to adoption. In our view, the meager record from the February 2014 proceeding does not reflect that Family Court engaged in any “age[-]appropriate consultation” with the subject children (
Most concerning, however, is that no real inquiry was made into respondent‘s current situation or her willingness or ability to correct the conditions that led to the initial removal of the subject children from her home. Rather, in changing the permanency goal, Family Court relied upon “the full history of the case” and considered a permanency hearing report that contained irrevelant information about a child who was not the proper subject of the proceedings. Likewise, much of the testimony at the February 2014 hearing concerned respondent‘s older child5 rather than the subject children. Although continuing the subject children in the care and custody of petitioner was warranted due to the length of time that they had been separated from respondent, Family Court‘s determination to change the permanency goal is without a sound and substantial basis in the record and, as such, represents another misapplication of law (see Matter of Dakota F. [Angela F.], 110 AD3d at 1153-1154; Matter of Dakota F. [Angela F.], 92 AD3d at 1098-1099). In light of the significant time that has elapsed since the permanency goal was altered, we deem it prudent to remit this matter for further proceedings before Family Court. In so doing, we note our concern with Family Court‘s decision to grant the motion by respondent‘s attorney to be relieved as counsel and respondent proceeding pro se (see
Respondent‘s remaining contentions, to the extent that they have not been rendered academic, have been considered and found to be unavailing.
Garry and Egan Jr., JJ., concur.
Lahtinen, J.P. (dissenting). I respectfully dissent. Although I agree with the majority that the record should have been more fully developed and clearer, nonetheless, I believe that despite its defects there is a sound and substantial basis in the record
Petitioner has been involved with respondent and her four children for many years, the subject two children were removed from her care in 2007, and they have resided since March 2011 with foster parents who desire to adopt them and by whom they wish to be adopted. Respondent‘s parental rights were previously terminated, but evidentiary errors resulted in reversal (Matter of Dakota F. [Angela F.], 110 AD3d 1151 [2013], lv denied 22 NY3d 1015 [2013]). At the commencement of the permanency hearing after our reversal, petitioner informed Family Court that new permanent neglect petitions had been filed and requested discharge to adoption as the permanency goal. “With respect to the permanency goal, although the overarching consideration is always to return the child[ren] to the parent, when such reunification is not possible because of a parent‘s unwillingness or inability to correct the conditions that led to the removal of the children from the home, the goal then shifts to finding a permanent, stable solution as soon as possible because it is not in the children‘s best interests to continue in foster care on an indefinite or long-term basis” (Matter of Destiny EE. [Karen FF.], 82 AD3d 1292, 1294 [2011] [internal quotation marks and citations omitted]).
Respondent‘s history included, among other things, several significant mental health issues. Proof from the February 2014 hearing indicated that she had discharged herself from medical treatment with her psychiatrist. Although the time line is not well developed, at some point she returned to a mental health clinic where she saw a counselor; but she had not yet resumed medical treatment with a psychiatrist. Respondent harassed the subject children‘s mental health counselor with calls reflecting her self-interest, resulting in Family Court directing her to cease calling the counselor. She caused significant distress to one of her other children (with whom she had limited supervised visitation) by discussing pending proceedings with that child. Her actions reflected conduct detrimental to the subject children and an unwillingness to adequately address her underlying problems. Moreover, during the time that these proceedings involving the future of the subject children were pending, respondent—an acknowledged risk level one sex offender—violated her probation and was returned to jail. Evidence received without objection at the July 2014 hearing included that respondent had previously allowed the subject children around sex offenders, and she had past criminal conduct for acts involving a child.
Ordered that the orders are modified, on the law and the facts, without costs, by reversing so much thereof as modified the permanency goal from return to parent to placement for adoption; matter remitted to the Family Court of St. Lawrence County for further proceedings not inconsistent with this Court‘s decision; and, as so modified, affirmed.