In the Matter of JOSHUA E.R. CARDINAL MCCLOSKEY COMMUNITY SERVICES et al., Respondents; YOLAINE R. et al., Appellants. (Proceeding No. 1.) In the Matter of JERANAMOR A.R., JR. CARDINAL MCCLOSKEY COMMUNITY SERVICES et al., Respondents; YOLAINE R. et al., Appellants. (Proceeding No. 2.) In the Matter of ELIJAH J.R. CARDINAL MCCLOSKEY COMMUNITY SERVICES et al., Respondents; YOLAINE R. et al., Appellants. (Proceeding No. 3.)
Proceeding No. 1; Proceeding No. 2; Proceeding No. 3
Supreme Court, Appellate Division, Second Department, New York
997 NYS2d 739
In the Matter of JOSHUA E.R. CARDINAL MCCLOSKEY COMMUNITY SERVICES et al., Respondents; YOLAINE R. et al., Appellants. (Proceeding No. 1.) In the Matter of JERANAMOR A.R., JR. CARDINAL MCCLOSKEY COMMUNITY SERVICES et al., Respondents; YOLAINE R. et al., Appellants. (Proceeding No. 2.) In the Matter of ELIJAH J.R. CARDINAL MCCLOSKEY COMMUNITY SERVICES et al., Respondents; YOLAINE R. et al., Appellants. (Proceeding No. 3.) [997 NYS2d 739]—
Appeals from three orders of fact-finding and disposition of the Family Court, Queens County (Margaret P. McGowan, J.) (one as to each child), all entered September 20, 2013. Each order found that the mother and the father had permanently neglected the subject child and terminated their parental rights as to the subject child.
Ordered that the orders are affirmed, without costs or disbursements.
The mother and the father have three children: Jeranamor A.R., Jr., Elijah J.R., and Joshua E.R. Jeranamor was removed from the parents’ care in November 2007 at the age of five months following the filing of a neglect petition by the Administration for Children‘s Services of the City of New York (hereinafter ACS), alleging drug use by the father and mental illness as to the mother. Elijah also was removed within days of his birth in October 2008 and placed with the same foster family as Jeranamor. Joshua was born in March 2010 and was placed with a different foster family within a few days of his birth.
The petitioner agency informed the parents of a service plan for the return of Jeranamor and Elijah, which included taking parenting classes, attending domestic violence training, entering an anger management program, and consistently maintaining visitation with the children. The mother was also instructed to engage in mental health services, which included therapy and
In September 2010, the agency filed petitions pursuant to
Following the mother‘s testimony on direct examination during the fact-finding hearing as to the older children, she failed to appear in court on the date of her cross-examination. The Family Court struck her testimony and drew a negative inference from her failure to testify. On the next hearing date, the mother appeared with counsel and moved to vacate her default, asserting that she failed to arrive in a timely fashion on the previous hearing date because her train was delayed. The court denied the request, and found that Jeranamor and Elijah were permanently neglected. Following a second fact-finding hearing, the court also found Joshua to be permanently neglected. After a dispositional hearing with respect to all three petitions, the court found that it was in the children‘s best interests for the parental rights of the mother and father to be terminated and for the agency to receive custody of the children so that they could eventually be adopted by their respective foster mothers. The parents separately appeal.
The mother contends that the Family Court should have vacated her default, which resulted from her failure to appear for her cross-examination during the first fact-finding hearing. The question of whether to relieve a party of an order entered on default is a matter left to the sound discretion of the court (see Matter of Morales v Marma, 88 AD3d 722, 722 [2011]). In a proceeding such as the one at issue here, which is to terminate parental rights pursuant to
The Family Court also properly found that both parents had permanently neglected the subject children. A parent has permanently neglected a child when he or she fails for a period of at least one year after the child came into the custody of an authorized agency substantially and continuously or repeatedly to maintain contact with or plan for the future of the child (see
“An agency that has exercised diligent efforts but is faced with an uncooperative parent is deemed to have fulfilled its statutory obligations. . . . At a minimum, parents must take steps to correct the conditions that led to the removal of the child from their home” (Matter of Zechariah J. [Valrick J.], 84 AD3d 1087, 1087-1088 [2011] [citations and internal quotation
Here, the credible evidence showed that, contrary to her claims, the mother failed to consistently visit the children and did not comply with her mental health treatment program. Indeed, the mother‘s behavior in court and her repeated hospitalizations belied her claim that she was taking her medication on a consistent basis. Further, the father admittedly continued to take drugs and did not complete a drug rehabilitation program, which was the main component of mandatory services that he was required to complete as part of the plan to reunite with the children. Additionally, the agency‘s credible evidence showed that the father‘s visitation with the children was inconsistent. We see no reason to disturb the Family Court‘s finding of permanent neglect as to both parents (see Matter of Hadiyyah J.M. [Fatima D.R.], 91 AD3d at 875).
In addition, the Family Court properly determined that the best interests of the children would be served by terminating the parental rights of the mother and the father and freeing the children for adoption by their respective foster mothers (see
Finally, contrary to the mother‘s assertions, a suspended judgment was not warranted. The mother did not ask for entry of a suspended judgment. In any event, each of the children had bonded with their respective foster mothers with whom they
The mother‘s and father‘s remaining contentions are without merit.
Mastro, J.P., Roman, Sgroi and Maltese, JJ., concur.