719 747 2001 34 XX 34 747 719 747 2001 In the Matter of Rita " XX 34 HREF 34 XX 34 85731 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION THIRD JUDICIAL DEPARTMENT

Decision Date25 January 2001
Citation719 N.Y.S.2d 747
CourtNorth Carolina Court of Appeals
PartiesPage 747 719 N.Y.S.2d 747 (A.D. 3 Dept. 2001) In the Matter of Rita "XX" 1 et al., Alleged to be Permanently Neglected Children. Broome County Department of Social Services, Respondent; Gladys "XX" et al., Appellants. 85731 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

Jeffrey S. Berkun, Albany, for Daniel "XX", appellant.

Becky L. Arnold, Binghamton, for Gladys "XX", appellant.

Kuredin V. Eytina, Department of Social Services, Binghamton, for respondent.

Levene, Gouldin & Thompson (Caroline Vadala of counsel), Vestal, for Rita "XX" and another.

Before: Cardona, P.J., Mercure, Spain, Carpinello and Rose, JJ.

Carpinello, J.

MEMORANDUM AND ORDER

Appeal from an order of the Family Court of Broome County (Ray, J.), entered July 26, 1999, which granted petitioner's application, in a proceeding pursuant to Social Services Law § 384-b, to adjudicate respondents' children to be permanently neglected, and terminated respondents' parental rights.

Respondents are the biological parents of Rita "XX" (born in September 1987) and Mary "XX" (born in November 1988), both of whom were placed in petitioner's custody in August 1996 as a result of physical abuse perpetrated on the older child by her father, respondent Daniel "XX" (hereinafter the father). In February 1997, respondents were adjudicated to have neglected and abused the children and were ordered to participate in various services. One year later, petitioner filed the instant petition seeking termination of their rights on the ground of permanent neglect (see, Social Services Law § 384-b[7][a]). After finding the children to be permanently neglected based on respondents' admissions to substantial portions of the allegations in the petition, Family Court postponed the dispositional hearing for six months. After several additional extensions, the dispositional hearing was ultimately held, resulting in an order terminating respondents' parental rights and committing the custody of the children to petitioner. Respondents appeal.

We reject the argument by the children's mother, respondent Gladys "XX" (hereinafter the mother), that petitioner failed to prove the elements of permanent neglect at the dispositional hearing. The mother's admission that she permanently neglected her children dispensed with the need by petitioner to put forth any evidence on this issue at the fact-finding hearing (see, Matter of Fay H., 103 AD2d 977; see also, Matter of Patricia O. [Patricia K.], 175 AD2d 870, 871; Matter of Debra Ann D., 133 AD2d 83, 84). The only issue before Family Court at the dispositional hearing was the appropriate disposition in light of the children's best interests (see, Family Ct. Act § 631; see, Matter of Star Leslie W., 63 NY2d 136, 147; Matter of Fay H., supra).

As to Family Court's disposition in this matter—termination of both respondents' parental rights—we find no basis to disturb it. According to the testimony of Elizabeth Olmstead, the caseworker assigned to respondents' case, numerous service plans were designed for respondents which required, inter alia, each parent to attend parenting classes and mental health evaluations and to undergo counseling (the mother was to undergo crime victims counseling and the father was to undergo domestic violence and anger management counseling). Olmstead testified, however, that both respondents failed to substantially participate in or complete their service plan recommendations. While she acknowledged that respondents did essentially complete one set of parenting classes in December 1996, she nevertheless opined that they did not appear to benefit from those classes. According to Olmstead, the mother was unable to discipline the children during visits—which Olmstead described as "out of hand" and "chaotic"—and the father made argumentative and inappropriate statements about the court proceedings in front of them. Indeed, his visitation was subsequently terminated because of this conduct.

It was also established through Olmstead's testimony that prior to the filing of the permanent neglect petition, respondents did not participate in required counseling and that since its filing each made efforts at attending, but the mother failed to complete same and the father was discharged for failing to participate. In addition, the...

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