In re Victorious LL.

Appellate Division of the Supreme Court of the State of New York

Jun 17, 2010

Versions:74 A.D.3d 1591

903 N.Y.S.2d 594

Mercure, J.P. Appeal from an order of the Family Court of Ulster County (Mizel, J.), entered July 27, 2009, which granted petitioner’s application, in a proceeding pursuant to Social Services Law § 384-b, to adjudicate respondent’s child to be permanently neglected, and terminated respondent’s parental rights.

Respondent is the father of a son who was born in 2007, and placed in foster care shortly after birth. A neglect petition against respondent was adjourned in contemplation of dismissal upon the understanding that he would complete substance abuse treatment and anger management programs, obtain housing and a means of support, and visit with the child regularly.¹

Respondent attempted to comply with that plan, exercised visitation with the child and enrolled in a substance abuse treatment program, the successful completion of which was acknowledged to be the first step of the plan. Although he failed to successfully complete the program, he continued to actively seek out a treatment program in which to participate despite petitioner’s alleged lack of assistance in that regard. Petitioner thereafter commenced the present proceeding, arguing that respondent permanently neglected the child by failing to adequately plan for the child’s future. Family Court conducted fact-finding and dispositional hearings, adjudicated the child to be permanently neglected and terminated respondent’s parental rights.

Respondent now appeals and appellate counsel seeks to be relieved of her assignment, arguing that no nonfrivolous issues exist that can be raised on appeal. Our review of the record, however, reveals at least one potentially nonfrivolous issue, namely the sufficiency of the evidence supporting the finding that respondent’s conduct constituted permanent neglect (see Social Services Law § 384-b [4] [d]; [7] [a], [c]; Matter of Rebecca KK., 31 AD3d 830, 831 [2006]; Matter of Darin J. v Tylena S., 298 AD2d 630, 632 [2002]; see generally Matter of Orlando F., 40 NY2d 103, 110-112 [1976]). Accordingly, counsel’s request is granted and new appellate counsel will be assigned to address this issue and any other nonfrivolous issues that the record may disclose.

Malone Jr., Kavanagh, Stein and Garry, JJ., concur. Ordered that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.

Notes

* The child’s mother executed a judicial surrender.