Cortland Cnty. Dep't of Soc. Servs. v. Ashley Q. (In re Zaiden P.)

Decision Date22 December 2022
Docket Number531324, 532686, 532687, 532833
Citation211 A.D.3d 1348,180 N.Y.S.3d 661
Parties In the MATTER OF ZAIDEN P. and Another, Neglected Children. Cortland County Department of Social Services, Respondent; v. Ashley Q., Appellant. (Proceeding No. 1.) In the Matter of Zaiden P. and Another, Alleged to be Permanently Neglected Children. Cortland County Department of Social Services, Respondent; v. Ashley Q., Appellant. (Proceeding No. 2.) In the Matter of Zaiden P. and Another, Alleged to be Permanently Neglected Children. Cortland County Department of Social Services, Respondent; v. Bayshawn P., Appellant. (Proceeding No. 3.)
CourtNew York Supreme Court — Appellate Division

Rural Law Center of New York, Inc., Castleton (Keith F. Schockmel of counsel), for Ashley Q., appellant.

Lisa K. Miller, McGraw, for Bayshawn P., appellant.

Cortland County Department of Social Services, Cortland (Keith I. Cassidy of counsel), for respondent.

Mark A. Schaeber, Liverpool, attorney for the children.

Before: Garry, P.J., Clark, Aarons, Pritzker and McShan, JJ.

MEMORANDUM AND ORDER

Garry, P.J. Appeals (1) from an order of the Family Court of Cortland County (Julie A. Campbell, J.), entered February 19, 2020, which, in proceeding No. 1 pursuant to Family Ct Act article 10, denied respondent's motion to modify a prior order temporarily suspending her visitation with the subject children, (2) from an order of said court, entered November 25, 2020, which granted petitioner's applications, in proceedings Nos. 2 and 3 pursuant to Social Services Law § 384–b, to adjudicate the subject children to be permanently neglected, and terminated respondents' parental rights, (3) from an order of said court, entered November 25, 2020, which dismissed respondent's amended cross application, in proceeding No. 2 pursuant to Social Services Law § 384–b, to terminate placement, and (4) from an order of said court, entered February 2, 2021, which granted petitioner's application, in proceeding No. 1 pursuant to Family Ct Act article 10, to permanently suspend respondent's visitation with the subject children.

Respondent Ashley Q. (hereinafter the mother) and respondent Bayshawn P. (hereinafter the father) are the parents of the subject children (born in 2017 and 2018). In June 2017, petitioner received a child protective report from the Statewide Central Register of Child Abuse and Maltreatment alleging that respondents were frequently involved with law enforcement for fighting and drug use. Petitioner's investigation of the report revealed, among other concerns, instances of domestic violence between respondents, an indicated child protective report against the father for inadequate guardianship of another child and a conviction for endangering the welfare of that child, substance abuse with respect to the father, untreated mental health issues on the part of both respondents and housing instability. In August 2017, petitioner filed a neglect application against each parent, and, pursuant to October 2017 orders entered on their default, respondents were found to have neglected the older child. Respondents were placed under petitioner's supervision and were required to undergo substance abuse, mental health and psychological evaluations and complete any recommended treatment, complete an anger management program and two parenting programs and maintain a safe and stable home, among other things.

In November 2017, petitioner filed a violation application against each parent, alleging that they had failed to abide by those conditions. The application against the father was granted upon default, and the application against the mother was granted upon consent, without admission of wrongdoing. The October 2017 dispositions were therefore revoked, and the older child was placed in petitioner's care and custody. The conditions imposed upon respondents were continued in full, and certain additional conditions were added, including the requirement that the mother seek medical attention for a serious untreated physical condition that reportedly causes, among other symptoms, aggression and impulsivity.

In May 2018, when the younger child was born, petitioner brought a derivative neglect proceeding against the mother citing the historic domestic violence between respondents, their continued relationship and the mother's failure to comply with the previously-ordered services. The younger child was removed from the mother's custody at the hospital following her birth and placed with a different foster family. In July 2018, the mother consented to a finding of neglect, without admission of wrongdoing, with respect to the younger child.1

In October 2018, upon the mother's request, the children were moved to Cattaraugus County and placed together with a family resource – the mother's former foster parent. A secondary local caseworker was assigned, but petitioner's motion to transfer the neglect proceedings to Cattaraugus County was ultimately denied. In May 2019, it was determined that the mother's former foster parent was presenting an obstacle to reunification, and the children were therefore moved to a new foster home, where they have remained.

In August 2019, following numerous incidents between the mother and caseworkers and service providers in both counties, petitioner commenced proceeding No. 1 seeking to suspend the mother's visitation with the children, and Family Court signed an order to show cause to that effect. Petitioner then commenced proceedings Nos. 2 and 3 to adjudicate the children permanently neglected and terminate respondents' parental rights. The mother answered and filed an amended cross application to terminate placement. During the pendency of the ensuing fact-finding hearing, the mother also moved to modify the order suspending her visitation. That motion was denied by order entered February 19, 2020. Following eight days of testimony, Family Court found that respondents permanently neglected the children, and, following a dispositional hearing, the court terminated respondents' parental rights by order entered November 25, 2020. In light of that order, the court entered a second order on that date dismissing the mother's cross application to terminate placement. Thereafter, by order entered February 2, 2021, the court granted petitioner's motion to suspend the mother's visitation. Respondents both appeal from the November 2020 order terminating their respective parental rights, and the mother also appeals from the February 2020 order, the November 2020 order denying her motion to terminate placement and the February 2021 order.2

The mother initially argues that the orders before us, and these proceedings generally, are nullities because she was not served with the initial neglect petition in accordance with the terms of an August 1, 2017 order to show cause directing that personal service on her be accomplished by August 3, 2017. In support of her claim, she points to a caseworker's affidavit submitted in support of the violation petitions, in which the caseworker articulates the history of these matters and states that respondents left Cortland County around the time that the neglect proceedings were commenced and that, on August 29, 2017, petitioner located respondents in New Jersey and had them served there. The mother asserts that, because there is nothing in the record before us to indicate that substitute service was authorized and accomplished, we must conclude that Family Court never obtained personal jurisdiction over her (see generally Matter of Sorli v. Coveney, 51 N.Y.2d 713, 714, 431 N.Y.S.2d 1001, 410 N.E.2d 1228 [1980] ; Matter of Keith X. v. Kristin Y., 124 A.D.3d 1056, 1057–1058, 2 N.Y.S.3d 268 [3d Dept. 2015], lv denied 25 N.Y.3d 907, 2015 WL 2237602 [2015] ). Her argument follows that, without jurisdiction, the October 2017 default order as to her, and the January 2018 order finding a violation thereof, are nullities; the May 2018 order finding derivative neglect upon consent is therefore also a nullity, and, "[f]or like reasons," the November 2020 order finding the children to be permanently neglected is also null.

Even if we were to accept the mother's line of reasoning, and thus agree that a service issue in a proceeding not before us may be reviewed upon these appeals, the silence in the record on appeal as to this issue – which was not litigated in the instant proceedings – cannot be said to be dispositive.3 Moreover, the findings in the October 2017 and January 2018 orders, and the mother's noncompliance with those orders, were not the sole bases of the permanent neglect proceeding against her, and it is not disputed that Family Court obtained personal jurisdiction over the mother for that purpose. We therefore find the mother's nullity argument unavailing.

As relevant here, a permanently neglected child is one who is in the care of an authorized agency and whose parent has failed, for at least one year after the child came into the agency's care, to "substantially and continuously or repeatedly ... 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" ( Social Services Law § 384–b [7][a] ). Thus, as a threshold matter, the petitioning agency must prove, by clear and convincing evidence, that it had made "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 Makayla I. [Sheena K.], 201 A.D.3d 1145, 1147, 160 N.Y.S.3d 476 [3d Dept. 2022] [internal quotation marks and citation omitted], lvs denied 38 N.Y.3d 903, 166 N.Y.S.3d 623, 186 N.E.3d 1291 [202...

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