Christopher II, Matter of

• Decision Date: 21 December 1995
• Citation: 222 A.D.2d 900,635 N.Y.S.2d 747
• Parties: In the Matter of CHRISTOPHER "II" 1 et al., Alleged to be Permanently Neglected Children. Broome County Department of Social Services, Respondent; Wanda "KK",1 Appellant.
• Court: New York Supreme Court — Appellate Division

Page 747

635 N.Y.S.2d 747

222 A.D.2d 900

In the Matter of CHRISTOPHER "II" ¹ et al.,

Alleged to be Permanently Neglected Children.

Broome County Department of Social Services, Respondent;

Wanda "KK",1 Appellant.

Supreme Court, Appellate Division,

Third Department.

Dec. 21, 1995.

James Rothe, Binghamton, for appellant.

Laurie E. Chess, Department of Social Services, Binghamton, for respondent.

Martha Lyons, Law Guardian, Binghamton, for Christopher II and another.

Before CARDONA, P.J., and MERCURE, WHITE, CASEY and SPAIN, JJ.

MERCURE, Justice.

Appeal from an order of the Family Court of Broome County (Hester Jr., J.), entered July 6, 1994, which granted petitioner's application, in a proceeding pursuant to Social Services Law § 384-b, to, inter alia, adjudicate two of respondent's children to be permanently neglected, and terminated respondent's parental rights.

Respondent's children Christopher and Amber were placed in petitioner's protective custody in 1986 as the result of Family Court's determination that the children (and two siblings who are not involved in this appeal) were neglected by respondent and the children's father as the result of repeated acts of domestic violence and respondent's allegation that Amber had been sexually abused by her father. Petitioner's custody continued through July 1993, when petitioner initiated this proceeding for an adjudication that the children are permanently neglected. Following a fact-finding hearing and the parties' waiver of a dispositional hearing, Family Court found that, despite petitioner's diligent efforts to encourage and strengthen the parental relationship between respondent and the children, respondent failed for a period of more than one year following the children's placement in petitioner's care to substantially and continuously or repeatedly maintain contact with or plan for the future of the children, although physically and financially able to do so (see, Social Services Law § 384-b). Family Court adjudicated the children to be permanently neglected and awarded their custody to petitioner. Respondent appeals.

We affirm. As a preliminary matter, we note that respondent has raised no issue concerning petitioner's diligent efforts to strengthen the parental relationship (Social Services Law § 384-b[7][a], and the record provides abundant support for the finding that such an effort was made. We also note that, because "contact and planning are alternative elements" (Matter of Scotty C. [Nancy B.], 154 A.D.2d 784, 786, 546 N.Y.S.2d 461, lv. denied 75 N.Y.2d 707, 554 N.Y.S.2d 476, 553 N.E.2d 1024; see, Matter of Star Leslie W., 63 N.Y.2d 136, 142-143, 481 N.Y.S.2d 26, 470 N.E.2d 824), evidence of respondent's regular contact with the children was not of itself sufficient to defeat the petition. Turning now to the contentions raised in respondent's brief, we conclude that petitioner established by the requisite clear and convincing proof that respondent failed to plan for her children's future (Social Services Law § 384-b[7]; see, Matter of Star Leslie W., supra; Matter of Scotty C. [Nancy B.], supra). Planning for the future involves "tak[ing] such steps as may be necessary to provide an adequate, stable home and parental care for the child[ren] within a period of time which is reasonable under the financial circumstances available to the parent" (Social Services Law § 384-b[7][c]. "At a minimum, parents must 'take steps to correct the conditions that led to the removal of the child[ren] from their home * * *' " (Matter of Nathaniel T., 67 N.Y.2d 838, 840, 501 N.Y.S.2d 647, 492 N.E.2d 775, quoting Matter of Leon RR., 48 N.Y.2d 117, 125, 421 N.Y.S.2d 863, 397 N.E.2d 374).

Here, the children were removed from their home in 1986 because of respondent's inability or unwillingness to protect them from their father's acts of domestic violence, physical abuse and suspected sexual abuse. Rather than cooperate with petitioner, learn to act as a protective parent and avoid contact with individuals who were reasonably likely to place the children at risk, respondent repeatedly "made up" with the father and secretly permitted him and a succession of other paramours to reside with her and be present with the children during periods of visitation. Clearly, faced with a choice between her children and her various romantic interests, respondent consistently elected in favor of the latter (see, Matter of Michael BB. [Robin BB.], 206 A.D.2d 600, 601, 614 N.Y.S.2d 470; Matter of Albert T. [Nancy T.], 188 A.D.2d 934, 937, 592 N.Y.S.2d 87; ...