In re NN

• Decision Date: 24 July 2014
• Citation: 119 A.D.3d 1243,990 N.Y.S.2d 350,2014 N.Y. Slip Op. 05471
• Parties: In the Matter of ASIANNA NN. and Another, Alleged to be Permanently Neglected Children. Albany County Department of Children, Youth and Families, Respondent; Kansinya OO., Appellant.
• Court: New York Supreme Court — Appellate Division

119 A.D.3d 1243

990 N.Y.S.2d 350

2014 N.Y. Slip Op. 05471

In the Matter of ASIANNA NN. and Another, Alleged to be Permanently Neglected Children. Albany County Department of Children, Youth and Families, Respondent; Kansinya OO., Appellant.

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

July 24, 2014.

Sandra M. Colatosti, Albany, for appellant.

James J. Green, Albany County Department of Children, Youth and Families, Albany, for respondent.

Carol R. Stiglmeier, Albany, attorney for the children.

Gleason, Dunn, Walsh & O'Shea, Albany (Brendan C. O'Shea of counsel), for Gail W., intervenor.

Nancy E. Stroud, Latham, for Christine OO. and Andrew OO.

Before: LAHTINEN, J.P., McCARTHY, GARRY, LYNCH and CLARK, JJ.

GARRY, J.

Appeals (1) from an order of the Family Court of Albany County (M. Walsh, J.), entered March 26, 2012, which granted petitioner's application, in a proceeding pursuant to Social Services Law § 384–b, to adjudicate respondent's children to be permanently neglected, (2) from an order of said court, entered January 3, 2013, which terminated respondent's parental rights, and (3) from an amended order of said court, entered May 16, 2013, which, among other things, granted petitioner's motion to modify the prior order of disposition by committing the care, custody and guardianship of Asianna NN. to her maternal grandparents.

Respondent is the mother of two children (born in 2005 and 2006). In September 2007, the maternal grandparents arrived at respondent's home in mid-afternoon, immediately noticed that something was wrong with the younger child—then 11 months old—and took her to the hospital. The child was admitted in critical condition with bilateral subdural hematomas, retinal hemorrhaging and other injuries that, according to the treating medical providers, indicated shaken baby syndrome and blunt force trauma. Petitioner's caseworker later testified that the child had “obvious” injuries, with extensive bruises on her face and abdomen and dried blood on her ears. Respondent maintained, however, that she had noticed nothing wrong with the child while caring for her earlier that day other than a fever; she said that she did not know how the child was injured and could not think of anyone who might have harmed her.¹ Respondent's paramour ultimately admitted that he had spent the night in the apartment and had violently shaken the child early that morning.

Petitioner commenced proceedings pursuant to Family Ct. Act article 10 to adjudicate both of respondent's children to be abused based on her failure to protect them from the paramour and to seek medical attention for the younger child. Upon respondent's consent, the children were temporarily removed and placed in petitioner's care and custody. The temporary order of removal was later modified to place the older child in the custody of the maternal grandparents, where she still remains. The younger child was hospitalized for several weeks in a pediatric intensive care unit, transferred to a rehabilitation facility and, after several months, placed in the pre-adoptive foster home where she now resides. She is diagnosed with a traumatic brain injury and continues to suffer from one-sided paralysis, cognitive deficits and other long-term consequences of the assault.

Following a joint trial, the paramour was convicted in early 2009 of reckless assault of a child; respondent was convicted of endangering the welfare of a child and sentenced in March 2009 to a one year jail term. Shortly thereafter, Family Court adjudicated both children to be abused pursuant to respondent's consent without admission. In August 2009, while respondent was serving her sentence, petitioner commenced this permanent neglect proceeding. Following respondent's release in November 2009, a fact-finding hearing was held on multiple days between May 2010 and February 2011. In March 2012, Family Court adjudicated both children to be permanently neglected; following a dispositional hearing, the court terminated respondent's parental rights and placed both children in petitioner's custody. Petitioner subsequently moved to modify the order of disposition to commit the custody and guardianship of the older child to the maternal grandparents, and this motion was granted. Respondent appeals from the order of fact-finding and the order and amended order of disposition.

Contrary to respondent's assertion, the record demonstrates that petitioner exercised the requisite diligent efforts to encourage and strengthen her relationship with the children ( seeSocial Services Law § 384–b [7]; Matter of Star Leslie W., 63 N.Y.2d 136, 142, 481 N.Y.S.2d 26, 470 N.E.2d 824 [1984] ). Respondent concedes that petitioner offered her a range of rehabilitative services, including, among other things, preventive services, domestic violence counseling and visitation assistance; however, she asserts that these services were inadequately goal-specific and did not satisfy petitioner's duty to provide services particularly tailored to “ameliorate the problems preventing discharge of the child[ren] to [her] care” (Matter of Hailey ZZ. [Ricky ZZ.], 19 N.Y.3d 422, 429, 948 N.Y.S.2d 846, 972 N.E.2d 87 [2012] [internal quotation marks and citation omitted] ). Petitioner counters that its inability to obtain more individualized recommendations was the direct consequence of respondent's delay in undergoing a recommended psychological evaluation and family assessment. Petitioner's caseworker testified that such an assessment was required to identify mentalhealth issues that might have contributed to respondent's initial failure to seek medical treatment and her alleged ongoing failure thereafter to recognize the severity of the child's condition and accept responsibility for her role in causing her injuries. The record confirms that for more than a year, petitioner repeatedly offered to arrange the assessment, explained the need for it and advised respondent that her refusal to participate was hindering reunification with her children; respondent nevertheless refused to cooperate on the ground that her defense counsel had advised her not to do so until the criminal prosecution was resolved. Following her conviction in 2009, respondent did undergo the evaluation, but was then incarcerated almost immediately thereafter. Petitioner was not required to provide rehabilitative services while respondent was incarcerated ( seeSocial Services Law § 384–b [7][f][3]; Matter of Havyn PP. [Morianna RR.], 94 A.D.3d 1359, 1361, 943 N.Y.S.2d 243 [2012];Matter of Kaiden AA. [John BB.], 81 A.D.3d 1209, 1210, 917 N.Y.S.2d 394 [2011] ). In view of the broad range of services that petitioner provided, together with respondent's resistance to the mental health evaluation, we find no error in Family Court's determination that petitioner satisfied its statutory duty ( see generally Matter of Sheila G., 61 N.Y.2d 368, 385, 474 N.Y.S.2d 421, 462 N.E.2d 1139 [1984] ).

Respondent next contends that petitioner did not prove by clear and convincing evidence that she “failed ‘substantially and continuously or repeatedly to maintain contact with or plan for the future of the child [ren]’ ” (Matter of James J. [James K.], 97 A.D.3d 936, 938, 948 N.Y.S.2d 203 [2012], quoting Social Services Law § 384–b [7][a] ). It is uncontroverted that respondent has maintained an affectionate bond with both children, visiting them consistently and as frequently as she was permitted to do so. However, a finding of permanent neglect may be based on either a showing of a failure to plan or to maintain contact; merely maintaining contact may not suffice ( see Matter of Chorus SS. [Elatisha SS.], 93 A.D.3d 1097, 1098, 941 N.Y.S.2d 745 [2012],lv. denied19 N.Y.3d 807, 2012 WL 2401592 [2012];Matter of Jyashia RR. [John VV.], 92 A.D.3d 982, 984, 938 N.Y.S.2d 645 [2012] ). Here, petitioner contends that respondent failed to plan for her children's future by, among other things, delaying the psychological evaluation, failing to meaningfully engage in all of the services offered to her and, most significantly, failing to take responsibility for and gain insight into the problems that led to the children's removal and thereafter prevented their return.

In this regard, respondent contends that her delay in undergoing the psychological assessment should not have counted against her, as she was exercising her constitutional privilege against self-incrimination. This privilege applies in Family Court proceedings, but does not permit a general refusal to answer all inquiries, and may be asserted only if “a direct answer by the witness confronts him or her with a substantial and real danger of criminal prosecution” (Matter of Ashley M., 256 A.D.2d 825, 826, 683 N.Y.S.2d 304 [1998];see Matter of Gladys H., 235 A.D.2d 841, 842, 653 N.Y.S.2d 392 [1997] ). Here, respondent was indisputably confronted with an ongoing criminal prosecution, and, as the assessment was intended to result in a report to petitioner, respondent's communications would not have been protected by the evidentiary privilege applicable in confidential therapeutic settings ( see generally State of New York v. General Elec. Co., 201 A.D.2d 802, 803, 607 N.Y.S.2d 181 [1994];compare Matter of Ashley M., 256 A.D.2d at 826, 683 N.Y.S.2d 304). It was not clearly established, however, that respondent's participation in the assessment would necessarily have required prejudicial admissions. The psychologist who ultimately conducted the assessment testified that his purpose in such inquiries was to assess the need for services, and not to determine culpability; as such, he stated that he avoided “legal issues” and did not challenge the parent's presentation of events or press for factual details. Further, even when properly asserted, a parent's exercise of the privilege in Family Court permits the trier of fact to draw the strongest negative inference supported by the evidence ( see Matter of Michael...