Cortland Cnty. Dep't of Soc. Servs. v. Roger I. (In re Arianna I.)

Decision Date29 November 2012
PartiesIn the Matter of ARIANNA I., Alleged to be an Abandoned Child. Cortland County Department of Social Services, Respondent; Roger I., Appellant. Lisa K. Miller, as Attorney for the Children, Appellant. (Proceeding No. 1.) In the Matter of Jessalyn J., Alleged to be a Permanently Neglected Child. Cortland County Department of Social Services, Respondent; Charles K., Appellant. Lisa K. Miller, as Attorney for the Children, Appellant. (Proceeding No. 2.) In the Matter of Jessalyn J., Alleged to be a Permanently Neglected Child. Cortland County Department of Social Services, Respondent; Jessica J., Appellant. Lisa K. Miller, as Attorney for the Children, Appellant. (Proceeding No. 3.) In the Matter of Arianna I., Alleged to be a Permanently Neglected Child. Cortland County Department of Social Services, Respondent; Jessica J., Appellant. Lisa K. Miller, as Attorney for the Children, Appellant. (Proceeding No. 4.)
CourtNew York Supreme Court — Appellate Division

100 A.D.3d 1281
955 N.Y.S.2d 413
2012 N.Y. Slip Op. 08189

In the Matter of ARIANNA I., Alleged to be an Abandoned Child.
Cortland County Department of Social Services, Respondent;
Roger I., Appellant.

Lisa K. Miller, as Attorney for the Children, Appellant.
(Proceeding No. 1.)
In the Matter of Jessalyn J., Alleged to be a Permanently Neglected Child.

Cortland County Department of Social Services, Respondent;
Charles K., Appellant.

Lisa K. Miller, as Attorney for the Children, Appellant.
(Proceeding No. 2.)
In the Matter of Jessalyn J., Alleged to be a Permanently Neglected Child.

Cortland County Department of Social Services, Respondent;
Jessica J., Appellant.

Lisa K. Miller, as Attorney for the Children, Appellant.
(Proceeding No. 3.)
In the Matter of Arianna I., Alleged to be a Permanently Neglected Child.

Cortland County Department of Social Services, Respondent;
Jessica J., Appellant.

Lisa K. Miller, as Attorney for the Children, Appellant.
(Proceeding No. 4.)

Supreme Court, Appellate Division, Third Department, New York.

Nov. 29, 2012.


[955 N.Y.S.2d 415]


Samuel D. Castellino, Elmira, for Roger I., appellant.

Bruce Evans Knoll, Albany, for Charles K., appellant.


Norbert A. Higgins, Binghamton, for Jessica J., appellant.

Lisa K. Miller, McGraw, attorney for the children, appellant.

Kathleen A. Sullivan, Cortland County Department of Social Services, Cortland, for respondent in proceeding No. 1.

Ingrid Olsen–Tjensvold, Cortland County Department of Social Services, Cortland, for respondent in proceeding Nos. 2, 3 and 4.

Before: ROSE, J.P., LAHTINEN, SPAIN, KAVANAGH and McCARTHY, JJ.

KAVANAGH, J.

[100 A.D.3d 1281]Appeals from five orders of the Family Court of Cortland County (Campbell, J.), entered May 9, 2011, May 10, 2011, July 25, 2011 and July 29, 2011, which granted petitioner's applications, in four proceedings pursuant to [100 A.D.3d 1282]Social Services Law § 384–b, to adjudicate the subject children to be abandoned and/or permanently neglected, and terminated respondents' parental rights.

Respondent Jessica J. (hereinafter the mother) is the mother of two girls, Arianna I. (born in 2004) and Jessalyn J. (born in 2006). Respondents Charles K. and Roger I. are the fathers of Jessalyn and Arianna, respectively. In October 2009, petitioner removed both children from the mother's custody, because, in addition to engaging in conduct indicating that she had significant mental health problems, she was in an abusive relationship and had previously assaulted Jessalyn. At the time the children were removed from her custody, Charles was incarcerated and Roger had only recently been released from prison. After a temporary order of protection was entered barring the mother from having any contact with the children, Family Court adjudicated both girls to be neglected and, upon consent, entered a dispositional order requiring that they remain in petitioner's custody. The order also required that the mother undergo mental health counseling,

[955 N.Y.S.2d 416]

avoid violent conduct, submit to drug and alcohol evaluations, participate in certain programming and make suitable arrangements so that the children could safely reside with her.

In November 2010, petitions were filed seeking to terminate respondents' parental rights. Specifically, the petitions alleged that the mother had permanently neglected both children, Charles had permanently neglected Jessalyn, and Roger had abandoned Arianna. Following fact-finding hearings, Family Court found that Jessalyn had been permanently neglected by her parents, and Arianna, in addition to being abandoned by Roger, had been permanently neglected by the mother. A dispositional hearing was held, after which the court terminated respondents' parental rights and freed the children for adoption. Respondents, as well as the attorney for the children, now appeal.1

Initially, we note that petitioner established by clear and convincing evidence that it made diligent efforts to promote a constructive relationship between the mother and the two children ( seeSocial Services Law § 384–b[7] [a]; [100 A.D.3d 1283]Matter of James J. [James K.], 97 A.D.3d 936, 936, 948 N.Y.S.2d 203 [2012];Matter of Havyn PP. [Morianna RR.], 94 A.D.3d 1359, 1360, 943 N.Y.S.2d 243 [2012] ). In that regard, we note the uncontroverted testimony of petitioner's caseworker that, in addition to establishing a visitation schedule and arranging for the mother to participate in various programming, the caseworker met with the mother monthly to discuss a service plan for the children ( see Matter of James J. [James K.], 97 A.D.3d at 937, 948 N.Y.S.2d 203;Matter of James X., 37 A.D.3d 1003, 1006, 830 N.Y.S.2d 608 [2007] ). Moreover, the mother not only failed to faithfully attend mental health counseling sessions, but did not complete any of the substance abuse programs arranged for her by petitioner. In addition, the mother continued to have contact with her former partner—with whom she had a violent relationship—and did not fully cooperate with petitioner's caseworkers in their efforts to promote a constructive relationship between her and the children. This record, in our view, supports a finding that the mother did not make a meaningful attempt to plan for the children's future and, as such, permanently neglected them ( seeSocial Services Law § 384–b[7] [c]; Matter of James J. [James K.], 97 A.D.3d at 938, 948 N.Y.S.2d 203;Matter of Tatianna K. [Claude U.], 79 A.D.3d 1184, 1185–1186, 912 N.Y.S.2d 166 [2010];see also Matter of Audrey I., 57 A.D.3d 1172, 1174, 870 N.Y.S.2d 504 [2008],lv. denied12 N.Y.3d 704, 879 N.Y.S.2d 50, 906 N.E.2d 1084 [2009];Matter of Vashaun P., 53 A.D.3d 712, 716, 861 N.Y.S.2d 453 [2008] ).

While the mother has undoubtably permanently neglected the children, we do not agree, on this record, that termination of her parental rights at this time is in the children's best interests ( seeFamily Ct. Act § 631; Matter of Eric G., 59 A.D.3d 785, 788, 872 N.Y.S.2d 739 [2009] ). In that regard, we note that the mother faithfully adhered to the weekly visitation...

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  • Cortland Cnty. Dep't of Soc. Servs. v. Brandon UU. (In re Brielle UU.)
    • United States
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    • December 13, 2018
    ...because no appeal lies as of right from a nondispositional order in a permanent neglect proceeding (see Matter of Arianna I. [Roger I.], 100 A.D.3d 1281, 1282 n. 1, 955 N.Y.S.2d 413 [2012] ; Matter of Alyssa L. [Deborah K.], 93 A.D.3d 1083, 1084–1085, 941 N.Y.S.2d 740 [2012] ). Nevertheless......
  • In re East
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    ...from the dispositional order in that proceeding brings up for review the fact-finding order ( see Matter of Arianna I. [Roger I.], 100 A.D.3d 1281, 1282 n. 1, 955 N.Y.S.2d 413 [2012] ). 3. As we stated in our prior decision, Kayden's injuries “included a skull fracture, severe brain damage ......
  • In re NN
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    • New York Supreme Court Appellate Division
    • July 24, 2014
    ...evidence pertaining to the older child prevents this Court from making that determination ( compare Matter of Arianna I. [Roger I.], 100 A.D.3d 1281, 1283–1284, 955 N.Y.S.2d 413 [2012];Matter of Eric G., 59 A.D.3d 785, 788, 872 N.Y.S.2d 739 [2009] ). Therefore, despite our reluctance to add......
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