Jennie EE, Matter of

• Decision Date: 25 November 1992
• Citation: 590 N.Y.S.2d 549,187 A.D.2d 877
• Parties: In the Matter of JENNIE "EE", 1 Alleged to be a Permanently Neglected Child. Carol W. Wallace, as Commissioner of the Greene County Department of Social Services, Respondent; Gerald "EE", 1 Appellant, et al., Respondent. Supreme Court, Appellate Division, Third Department
• Court: New York Supreme Court — Appellate Division

Page 549

590 N.Y.S.2d 549

187 A.D.2d 877

In the Matter of JENNIE "EE", ¹ Alleged to be a Permanently Neglected Child Carol W. Wallace, as Commissioner of the Greene County Department of Social Services, Respondent Gerald "EE", ¹ Appellant, et al., Respondent Supreme Court, Appellate Division Third Department.

Nov. 25, 1992.

Edward H. Wassermann, Altamont, for appellant.

Kenneth G. Cranna, Catskill, for Carol W. Wallace, respondent.

Before LEVINE, J.P., and MERCURE, MAHONEY, CASEY and HARVEY, JJ.

CASEY, Justice.

Appeal from an order of the Family Court of Greene County (Battisti Jr., J.), entered July 24, 1991, which granted petitioner's application, in a proceeding pursuant to Social Services Law § 384-b, to adjudicate Jennie "EE" a permanently neglected child, and terminated respondents' parental rights.

On October 14, 1986 at about 10:00 P.M., the infant Jennie "EE" was found on a couch in her parents' apartment by a police officer who had been summoned by a resident because the child had been screaming for hours. The officer found the apartment door ajar, Jennie's mother not home, and her father, respondent Gerald "EE" (hereinafter respondent) apparently intoxicated and "passed out" on the floor. Respondent was arrested and a caseworker for the Greene County Department of Social Services took Jennie into custody and placed her in foster care. Both parents were charged with neglect of Jennie, then 18 months old, and the charge was sustained after a fact-finding hearing. Following a dispositional hearing in May 1988, Family Court ordered Jennie to remain in petitioner's custody for 18 months upon a finding that her parents had failed to comply with prior court orders.

Petitioner commenced this proceeding against both parents in September 1988, alleging that Jennie was a permanently neglected child, and requesting that custody and guardianship of Jennie be awarded to petitioner. Following a fact-finding hearing, Family Court found that both parents failed to plan for Jennie's future and participate in the rehabilitative services offered. Family Court concluded that Jennie's best interest would be served by termination of parental rights. Family Court terminated the parental rights of both parents after a dispositional hearing and awarded guardianship of Jennie to petitioner. Only respondent appeals from the order entered on this determination.

It is respondent's claim (1) that the petition is defective for petitioner's failure to plead and prove respondent's neglect for a specific one-year period following the date Jennie came into petitioner's care and custody, and (2) that the petition's allegations were conclusory and, therefore, ineffective. Although these claims were not properly preserved for review on appeal (see, Matter of Dixie Lu EE. [Dixie FF.], 142 A.D.2d 747, 747-748, 530 N.Y.S.2d 655), we nevertheless will consider the merits of respondent's arguments. Social Services Law § 384-b(7)(a) relevantly provides that a permanently neglected child is one whose parent fails, for a period of more than one year following the date the child came into the care of an authorized agency, to substantially and continuously or repeatedly maintain contact with the child or plan for the future of the child. The statute, therefore, contemplates a period of one year at any time after the child's placement with the agency (see, Matter of Star Leslie W., 63 N.Y.2d 136, 146, 481 N.Y.S.2d 26, 470 N.E.2d 824). As to the petition, its allegations are sufficiently specific to comply with the statutory requirements of Family Court Act § 614(1)(c) (see, Matter of Dixie Lu EE. [Dixie FF.], supra, 142 A.D.2d at 748, 530 N.Y.S.2d 655). The petition alleged that petitioner arranged for and encouraged respondent to engage in alcohol rehabilitation and counseling, but that respondent, inter alia, failed to follow such a plan or follow through with petitioner's recommendations for a period that exceeded the statutory period. These allegations are sufficient to charge respondent with permanent neglect (compare Matter of Dixie Lu EE. [Dixie FF.], supra, with Matter of Anita PP., 65 A.D.2d 18, 21-22, 410 N.Y.S.2d 916).

We further find that Family Court's findings were supported by clear and convincing evidence and that its order terminating respondent's parental rights, as recommended by the Law Guardian, furthers Jennie's best interest. Contrary to respondent's claim that he is a fit parent who tried to maintain contact with his daughter and is entitled to custody of Jennie, the record supports the finding that petitioner fulfilled its statutory obligations of diligent efforts by attempting to strengthen respondent's parental relationship while Jennie was in petitioner's custody (see, Matter of Joyce A.R., 52 A.D.2d 882, 383 N.Y.S.2d 58) and diligently attempted to assist respondent in obtaining counseling to correct his alcohol problem. It is clear that it was respondent's failure or refusal to admit that he had...