Schenectady Cnty. Dep't of Soc. Servs. v. Felicia DD. (In re Syles DD.)

• Decision Date: 12 January 2012
• Parties: In the Matter of SYLES DD., Alleged to be a Permanently Neglected Child.Schenectady County Department of Social Services, Respondent;Felicia DD., Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00146

91 A.D.3d 1054

937 N.Y.S.2d 390

In the Matter of SYLES DD., Alleged to be a Permanently Neglected Child.Schenectady County Department of Social Services, Respondent;Felicia DD., Appellant.

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

Jan. 12, 2012.

Sandra M. Colatosti, Albany, for appellant.

Lauren A. Selchick, Schenectady County Department of Social Services, Schenectady, for respondent.

Diane M. Herrmann, Schenectady, attorney for the child.

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

McCARTHY, J.

Appeals from three orders of the Family Court of Schenectady County (Powers, J.), entered August 3, 2010, October 14, 2010 and April 8, 2011, which, among other things, granted petitioner's application, in a proceeding pursuant to Social Services Law § 384–b, to adjudicate Syles DD. to be a permanently neglected child, and terminated respondent's parental rights.

After respondent used excessive corporal punishment on her son (born in 2002), she consented to his removal from her home to foster care in March 2008. In June 2008, Family Court adjudicated him to be a neglected child. The child continuously remained in foster care for more than one year, leading petitioner to commence this proceeding seeking to terminate respondent's parental rights based upon permanent neglect ( see Social Services Law § 384–b). After a fact-finding hearing, the court granted petitioner's application to adjudicate respondent's son a permanently neglected child. Following a dispositional hearing, the court terminated respondent's parental rights. Respondent appeals from the orders entered after fact-finding and disposition.

“The threshold inquiry in a permanent neglect proceeding is whether petitioner established by clear and convincing evidence that it made diligent efforts to encourage and strengthen the parent-child relationship” ( Matter of Alycia P., 24 A.D.3d 1119, 1120, 807 N.Y.S.2d 172 [2005] [citations omitted]; see Social Services Law § 384–b[7][a] ). Here, petitioner presented the testimony of two of its caseworkers who worked with the family, as well as the child's counselor from an outside agency. Petitioner also submitted records from numerous agencies. These documents and witnesses established that petitioner offered or referred respondent to parenting classes, weekly visitation, individual counseling, domestic violence counseling, anger management classes, temporary shelter, transportation to visits and appointments, regular service plan reviews, and counseling with the child to strengthen the parent-child bond. Thus, petitioner made the required diligent efforts ( see Matter of Alexa L. [Nilza L.], 79 A.D.3d 1290, 1292–1293, 912 N.Y.S.2d 738 [2010] ).

Petitioner also established that respondent failed to develop a realistic plan for the child's future. While respondent disagrees with some of Family Court's findings, instead pointing to her own testimony or that of her witnesses, we defer to the hearing court's credibility determinations ( see Matter of Kaiden AA. [John BB.], 81 A.D.3d 1209, 1211, 917 N.Y.S.2d 394 [2011] ). Respondent testified that she initially was upset with petitioner for removing her child and would not cooperate with recommended services. Despite not being employed, she refused to enroll in day sessions of parenting education classes to which she was referred in August 2008, because they might conflict with employment if she did find a job. She eventually enrolled in evening parenting classes in June 2009 and completed them in August 2009. She refused to engage in preventative services because she believed that they were not specifically required by court order, although she testified at the hearing that she would engage in those services if they were required to have her son return to her care. Respondent did not engage in or recognize a need for anger management or domestic violence treatment or counseling, despite several altercations with her fiancé resulting in police intervention. Respondent complained that petitioner did not assist her to find suitable housing, but she declined the referral to a domestic violence shelter and eventually moved back in with her fiancé. Notwithstanding the domestic violence she experienced, including incidents in the presence of her daughter, respondent proffered her fiancé as a resource to assist her in caring for her son.

Respondent attended less than half of the child's counseling sessions that were arranged partly to assist in working through family issues and to strengthen the bond between her and her son. She initially refused to attend attention deficit hyperactivity disorder classes that were required as part of an evaluation process to determine if her child had a diagnosable disorder. Respondent also failed to regularly visit with her son. Petitioner arranged regular weekly visits with respondent, and even increased them to weekend unsupervised overnight visits. The overnight visits had to be rearranged because respondent had a dispute with the foster parent who was providing transportation. When petitioner attempted to arrange for a weekday overnight visit, respondent apparently responded that she would have to think about it and that she could not get up early to get the child to school. She then did not see the child for three months, apparently because she was having personal conflicts with her fiancé. Following her first visit after that three-month gap, respondent went another three months without visiting her child. Overall, respondent missed 15 of 40 scheduled visits. Of the potential or actual visits that could have occurred during the...