Cortland Cnty. Dep't of Soc. Servs. v. Brandon UU. (In re Brielle UU.)
| Decision Date | 13 December 2018 |
| Docket Number | 524781,524979,524711,524630 |
| Citation | 91 N.Y.S.3d 517,167 A.D.3d 1169 |
| Parties | In the MATTER OF BRIELLE UU., Alleged to be a Permanently Neglected Child. Cortland County Department of Social Services, Respondent; v. Brandon UU., Appellant. (Proceeding No. 1.) In the Matter of Brielle UU., Alleged to be a Permanently Neglected Child. Cortland County Department of Social Services, Respondent; v. Regina VV., Appellant. (Proceeding No. 2.) |
| Court | New York Supreme Court — Appellate Division |
167 A.D.3d 1169
91 N.Y.S.3d 517
In the MATTER OF BRIELLE UU., Alleged to be a Permanently Neglected Child.
Cortland County Department of Social Services, Respondent;
v.
Brandon UU., Appellant.
(Proceeding No. 1.)
In the Matter of Brielle UU., Alleged to be a Permanently Neglected Child.
Cortland County Department of Social Services, Respondent;
v.
Regina VV., Appellant.
(Proceeding No. 2.)
524630
524711
524781
524979
Supreme Court, Appellate Division, Third Department, New York.
Decided and Entered: December 13, 2018
Calendar Date: October 16, 2018
Lisa K. Miller, McGraw, for Brandon UU., appellant.
Ciano J. Lama, Ithaca, for Regina VV., appellant.
Zela E. Brotherton, Cortland County Department of Social Services, Cortland, for respondent.
Charles E. Lupia, Syracuse, attorney for the child.
Before: Garry, P.J., Egan Jr., Clark, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
Clark, J.
Appeals from four orders of the Family Court of Cortland County (Campbell, J.), entered February 24, 2017 and March 23, 2017, which granted petitioner's applications, in two proceedings pursuant to Social Services Law § 384–b, to adjudicate the subject child to be permanently neglected, and terminated respondents' parental rights.
Respondent Brandon UU. (hereinafter the father) and respondent Regina VV.
(hereinafter the mother) are the parents of a daughter (born in 2014). In June 2014, following an episode of domestic violence that reportedly occurred between the mother and the father in the presence of the child and her half sibling, petitioner commenced neglect proceedings against both the mother and the father. In December 2014, upon the mother's consent, Family Court entered an order of fact-finding and disposition that included a finding of neglect against the mother, placed the mother under a period of supervision by petitioner and suspended judgment. That same month, the father consented to an order that included a finding of neglect without factual admissions and directed his placement under petitioner's supervision for a period of one year. Family Court also issued an order of protection against the father, prohibiting him from having contact with the mother and the child, but permitting him supervised visits with the child.
In January 2015, while the father was incarcerated in a local jail, petitioner temporarily removed the child from the mother's care and filed a petition and amended petition against the mother alleging that she had violated certain conditions of the December 2014 suspended judgment and seeking the child's removal from the mother's care. Following a hearing, Family Court continued the child's temporary placement in the care and custody of petitioner. Thereafter, in April 2015, upon the mother's consent, Family Court found that the mother violated certain conditions of the suspended judgment, revoked the suspended judgment, adjudicated the mother to have neglected
the child, placed the mother under the supervision of petitioner for a period of one year and directed that the child remain in the care and custody of petitioner pending further court order.
In July 2016, petitioner commenced the instant proceedings against the mother and the father seeking adjudications of permanent neglect and termination of respondents' parental rights to the child. Following a fact-finding hearing and a dispositional hearing, Family Court adjudicated the child to have been permanently neglected by both the mother and the father, terminated respondents' parental rights to the child and transferred guardianship and custody of the child to petitioner. Respondents appeal,1 and we affirm.
The father challenges Family Court's finding that he permanently neglected the child. "A permanently neglected child is one ‘who is in the care of an authorized agency and whose parent has failed, for a period of more than one year following the date such child came into the care of an authorized agency, substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship’ " ( Matter of Kaylee JJ. [Jennifer KK.], 159 A.D.3d 1077, 1077–1078, 71 N.Y.S.3d 220 [2018], quoting
Matter of Landon U. [Amanda U.], 132 A.D.3d 1081, 1084, 19 N.Y.S.3d 341 [2015] ; see Social Services Law § 384–b [7 ][a] ). "Where, as here, petitioner seeks to terminate parental rights on the basis of permanent neglect, it ‘must first establish, by clear and convincing evidence, that it has made diligent efforts to encourage and strengthen the parent's relationship with the child[ ]’ " ( Matter of Paige J. [Jeffrey K.], 155 A.D.3d 1470, 1472, 65 N.Y.S.3d 357 [2017], quoting Matter of Alexander Z. [Jimmy Z.], 149 A.D.3d 1177, 1178, 51 N.Y.S.3d 231 [2017] ; see Social Services Law § 384–b [3 ][g][i] ). To satisfy its duty of diligent efforts, petitioner must "make practical and reasonable efforts to ameliorate the problems preventing reunification and strengthen the family relationship by such means as assisting the parent with visitation, providing information on the child's progress and development, and offering counseling and other
appropriate educational and therapeutic programs and services" (Matter of Carter A. [Courtney QQ.], 121 A.D.3d 1217, 1218, 993 N.Y.S.2d 799 [2014] ; accord Matter of Jessica U. [Stephanie U.], 152 A.D.3d 1001, 1002–1003, 59 N.Y.S.3d 195 [2017] ). Where the parent is incarcerated, "an agency may fulfill its duty ... by, for example, apprising the incarcerated parent of the child's well-being, developing an appropriate service plan, investigating possible placement of the child with relatives suggested by the parent, responding to the parent's inquiries and facilitating telephone contact between the parent and child" ( Matter of James J. [James K], 97 A.D.3d 936, 937, 948 N.Y.S.2d 203 [2012] ; see Matter of Timothy GG. [Meriah GG.], 163 A.D.3d 1065, 1070, 81 N.Y.S.3d 311 [2018], lvs denied 32 N.Y.3d 908, 2018 WL 5259916 [2018], 32 N.Y.3d 908, 89 N.Y.S.3d 115, 113 N.E.3d 949 [2018] ).
Contrary to the father's contention, petitioner satisfied its burden of establishing that it exercised diligent efforts to encourage and strengthen his relationship with the child. The evidence at the fact-finding hearing demonstrated that the father was incarcerated in a local jail when the child was removed from the mother's care in January 2015 and that, when he was released from jail later that month, he could not be a resource for the child given the order of protection prohibiting him from having unsupervised contact with the child. However, the father did suggest his brother and sister-in-law as a potential resource for the child and, following a successful home study, the child was placed with them for a period of time.2 The record established that, pursuant to Family Court's December 2014 order, the father was required to, among other things, maintain safe and stable housing for six months, maintain temporary assistance benefits, undergo both a mental health evaluation and a substance abuse evaluation and follow the recommendations flowing from those evaluations. Testimony from petitioner's caseworkers demonstrated that petitioner provided the father with various services to assist with these court mandates, including referrals for a drug and alcohol evaluation, a mental health evaluation, a parenting class and a family educator, who supervised visits between the father and the child and provided the father with weekly in-home education. The caseworkers' testimony also established that petitioner provided housing assistance to the father by housing him in various hotels from January 2015 through April 2015, when he secured a somewhat more stable living situation in a rooming house, helping the father with rent for the rooming house and providing him with landlord listings.
Petitioner's evidence
also demonstrated that it helped the father secure temporary assistance, including cash benefits, food stamps and Medicaid.
The evidence further established that the father...
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