John F, Matter of

• Decision Date: 30 November 1995
• Citation: 221 A.D.2d 858,634 N.Y.S.2d 256
• Parties: In the Matter of JOHN "F", 1 Alleged to be a Permanently Neglected Child. Cortland County Department of Social Services, Respondent; Sallie "U",1 Appellant. (And Two Other Related Proceedings.)
• Court: New York Supreme Court — Appellate Division

Page 256

634 N.Y.S.2d 256

221 A.D.2d 858

In the Matter of JOHN "F", ¹ Alleged to be a Permanently Neglected Child Cortland County Department of Social Services, Respondent Sallie "U",1 Appellant (And Two Other Related Proceedings.)

Supreme Court, Appellate Division,

Third Department.

Nov. 30, 1995.

Richard C. Van Donsel, Cortland, for Sallie U, appellant.

Grant Van Sant, Cortland, for Anthony U, appellant.

Donald W. Yager Jr., Department of Social Services, Cortland, for respondent.

John J. Fitzgerald, Law Guardian, Cortland, for John F.

Before MERCURE, J.P., and WHITE, CASEY, PETERS and SPAIN, JJ.

SPAIN, Justice.

Appeals from three orders of the Family Court of Cortland County (Mullen, J.), entered December 16, 1993, which granted petitioner's applications, in three proceedings pursuant to Social Services Law § 384-b, to adjudicate respondents' children to be permanently neglected, and terminated respondents' parental rights.

Respondents, Sallie "U" (hereinafter the mother) and Anthony "U" (hereinafter the father), are married and are the biological parents of Clarissa (born in 1984) and Bobbie Sue (born in 1987); the mother is also a biological parent of John (born in 1977).

In June 1989 the Tompkins County Department of Social Services filed an abuse petition against respondents and, after a hearing, Family Court determined that the father had engaged in acts of sexual intercourse with Clarissa and Bobbie Sue. ² By dispositional orders dated November 21, 1989, custody of John, Clarissa and Bobbie Sue was granted to petitioner. The order of disposition further provided that the father, upon his consent, could have no contact with the children; the mother was allowed visitation at petitioner's discretion and the children were placed in foster care. On December 15, 1989, Clarissa and Bobbie Sue were adjudicated by Tompkins County Family Court to be neglected by their mother because she failed to protect them from their father's sexual abuse. In September 1990, future proceedings were transferred to Cortland County Family Court.

In October 1991, petitioner filed three permanent neglect petitions which gave rise to these proceedings, to wit: one petition seeking to adjudicate John to be permanently neglected and naming the mother as respondent, and two petitions seeking to adjudicate Clarissa and Bobbie Sue to be permanently neglected and naming both the mother and the father as respondents. In December 1991, respondents resumed living together and continued to reside together through the time of the disposition of these cases.

After a lengthy fact-finding hearing, John, Clarissa and Bobbie Sue were adjudicated to be permanently neglected children. Family Court's determination was based on, inter alia, the father's unwillingness to admit, and seek treatment for, his acts of sexual misconduct with his daughters, and the mother's continual cohabitation with men having a history of sexual misconduct involving young children. Following a dispositional hearing, Family Court ordered that the mother's parental rights be terminated with respect to all three children and that the father's parental rights be terminated with respect to Clarissa and Bobbie Sue. The mother appeals from all three orders; the father appeals from the orders pertaining to Clarissa and Bobbie Sue.

The initial inquiry in any permanent neglect proceeding is "whether the child care agency exercised diligent efforts to strengthen and nurture the parent-child relationship" (Matter of Gregory B., 74 N.Y.2d 77, 86, 544 N.Y.S.2d 535, 542 N.E.2d 1052; see, Matter of Chianti FF. [Benjamin GG.], 205 A.D.2d 849, 850, 613 N.Y.S.2d 290). If Family Court concludes that the child care agency met its burden then there must be an inquiry into whether the parent in question has adequately planned for the future of his or her child(ren) during the year preceding petitioner's institution of the proceeding (see, Social Services Law § 384-b[7][a] ). In the case at bar, a separate inquiry is necessary for the father and the mother.

The father contends that petitioner did not establish that it met its initial burden and, further, that petitioner has not demonstrated that he failed to plan for the future of the children. Petitioner asserts that any efforts to reunite the children with the father would have been detrimental to the children (see, Matter of Vaketa Y. [Geraldine Y.], 141 A.D.2d 892, 894, 528 N.Y.S.2d 932; Matter of LeBron, 140 A.D.2d 276, 277, 528 N.Y.S.2d 572; Matter of Florence X., 75 A.D.2d 942, 942-943, 428 N.Y.S.2d 80), and that the father's unwillingness to admit that he sexually abused his children and his failure to successfully complete treatment constitutes a failure to plan for the return of his children. Petitioner's assertion has merit and is fully supported by the record.

Critical to such a determination is whether the father has taken steps to correct the problem which initially led to removal (see, Matter of Nathaniel T., 67 N.Y.2d 838, 840, 501 N.Y.S.2d 647, 492 N.E.2d 775). The record clearly indicates that the father was unwilling to deal with his sexual abuse of his daughters. The father repeatedly refused to admit that he had engaged in inappropriate sexual contact with them and this denial and lack of cooperation subsequently led to him being expelled from his sexual offender treatment program. Thereafter, the father did not participate in any consistent counseling program. We conclude that, absent an admission to and successful completion of the counseling program, Family Court properly determined that the father failed to plan for the future of his children (see, Matter of Kayte M. [Tylene N.], 201 A.D.2d 835, 835-836, 608 N.Y.S.2d 711, lv. denied83 N.Y.2d 757, 614 N.Y.S.2d 386, 637 N.E.2d 277; Matter of Diana Crystal D. [Joseph D.], 200 A.D.2d 365, 606 N.Y.S.2d 186; Matter of Crystal Q. [William R.], 173 A.D.2d 912, 913, 569 N.Y.S.2d 775, lv. denied 78 N.Y.2d 855, 573 N.Y.S.2d 645, 578 N.E.2d 443) and therefore properly terminated the father's...