Schenectady Cnty. Dep't of Soc. Servs. v. Sheena K. (In re Makayla I.)

Decision Date13 January 2022
Docket Number530822
Citation201 A.D.3d 1145,160 N.Y.S.3d 476
Parties In the MATTER OF MAKAYLA I. and Others, Alleged to be Permanently Neglected Children. Schenectady County Department of Social Services, Respondent; v. Sheena K., Appellant. (Proceeding No. 1.) In the Matter of Makayla I. and Others, Alleged to be Permanently Neglected Children. Schenectady County Department of Social Services, Respondent; v. Caleb K., Appellant. (Proceeding No. 2.)
CourtNew York Supreme Court — Appellate Division

Paul J. Connolly, Delmar, for Sheena K., appellant.

Monique B. McBride, Albany, for Caleb K., appellant.

Christopher H. Gardner, County Attorney, Schenectady (Michael R. Godlewski of counsel), for respondent.

Patricia L. Countryman, Schenectady, attorney for the children.

Before: Garry, P.J., Egan Jr., Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Pritzker, J. Appeal from an order of the Family Court of Schenectady County (Burke, J.), entered January 14, 2020, which granted petitioner's applications, in two proceedings pursuant to Social Services Law § 384–b, to adjudicate the subject children to be permanently neglected, and terminated respondents’ parental rights.

Respondent Caleb K. (hereinafter the father) is the father of Annabella J. (born in 2009) and Caleb J. (born in 2012) and the stepfather of Makayla I. (born in 2004) (hereinafter collectively referred to as the children). Respondent Sheena K. (hereinafter the mother) is the mother of the children. In November 2013, the children were removed from respondents’ home and placed into the care and custody of petitioner due to allegations that the paternal grandfather – who was Makayla's stepgrandfather – had sexually abused Makayla. Petitioner thereafter commenced neglect and abuse proceedings against, as relevant here, the mother and the father as to Makayla and derivative abuse as to Annabella and Caleb. Subsequently, Annabella revealed that the father had likewise committed sexual offenses against her. Thereafter, based on the mother's admissions to the petition pending against her, Family Court (Powers, J.) adjudicated Makayla to be a neglected child and Annabella and Caleb to be derivatively neglected children. Then, in August 2016, following a fact-finding hearing, the court determined, among other things, that Makayla was abused by the grandfather and the father, Annabella was abused by the father and derivatively abused by the grandfather, and Caleb was derivatively abused by the father and the grandfather. On appeal, this Court affirmed the court's findings ( Matter of Makayla I. [Caleb K.], 162 A.D.3d 1139, 1142, 78 N.Y.S.3d 475 [2018] ).

The children remained in the care and custody of petitioner and, in August 2016, petitioner commenced this proceeding against the mother, seeking to adjudicate the children to be permanently neglected by her and to terminate her parental rights. Petitioner also commenced a separate permanent neglect proceeding against the father, seeking to terminate his parental rights to Annabella and Caleb. Following a fact-finding hearing on both petitions, Family Court (Burke, J.) determined that the children had been permanently neglected by the mother and that Annabella and Caleb had been permanently neglected by the father. Following a dispositional hearing, the court concluded that the children's best interests would be served by terminating respondents’ parental rights and freeing the children for adoption. Respondents appeal.

"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.’ As a threshold matter, the agency must prove – by clear and convincing evidence – that it made diligent efforts to encourage and strengthen the parent's relationship with the child" ( Matter of Jason O. [Stephanie O.], 188 A.D.3d 1463, 1464, 135 N.Y.S.3d 530 [2020], lv denied 36 N.Y.3d 908, 2021 WL 1134743 [2021], quoting Social Services Law § 384–b [7][a] ). To satisfy its duty of diligent efforts, "petitioner must make 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 Carter A. [Courtney QQ.], 121 A.D.3d 1217, 1218, 993 N.Y.S.2d 799 [2014] [citations omitted]; see Matter of Brielle UU. [Brandon UU.], 167 A.D.3d 1169, 1170–1171, 91 N.Y.S.3d 517 [2018] ).

The record reveals that petitioner regularly conducted service plan reviews so as to evaluate respondents’ progress toward the permanency goals and address their issues in meeting those goals. To assist them, petitioner provided respondents with mental health evaluations and services. Petitioner also provided them with parenting classes and coached supervised visits with the children. Also, contrary to respondents’ contention, the record reveals that they were advised by petitioner's caseworker that "they needed to acknowledge the abuse" and that their failure to do so impacted the ability to plan for the future of the children. The mother was additionally provided with services and aid for her particular needs, such as securing health insurance coverage and temporary housing in light of the indications of domestic abuse against her. As such, Family Court did not err in determining that petitioner satisfied its threshold burden of establishing that it exercised diligent efforts to encourage and strengthen the parental relationship (see Matter of Jase M. [Holly N.], 190 A.D.3d 1238, 1240–1241, 141 N.Y.S.3d 153 [2021], lvs denied 37 N.Y.3d 901, 146 N.Y.S.3d 589, 169 N.E.3d 959 [2021]; Matter of Dawn M. [Michael M.], 174 A.D.3d 972, 973–974, 107 N.Y.S.3d 450 [2019], lv denied 34 N.Y.3d 907, 2020 WL 104046 [2020] ; Matter of Logan C. [John C.], 169 A.D.3d 1240, 1242–1243, 94 N.Y.S.3d 696 [2019] ).

Petitioner also "satisfied its burden of proving by clear and convincing evidence that respondents failed to substantially plan for the child[ren's] future. ‘To substantially plan, a parent must, at a minimum, take meaningful steps to correct the conditions that led to the child[ren's] initial removal. The parent's plan must be realistic and feasible, and his or her good faith effort, alone, is not enough’ " ( Matter of Jase M. [Holly N.], 190 A.D.3d at 1241, 141 N.Y.S.3d 153 [brackets omitted], quoting Matter of Brielle UU. [Brandon UU.], 167 A.D.3d at 1172, 91 N.Y.S.3d 517 ; see Social Services Law § 384–b [7][c] ). "As relevant to whether a parent has so planned, the court may consider the failure of the parent to utilize medical, psychiatric, psychological and other social and rehabilitative services and material resources made available to such parent" ( Matter of Isabella H. [Richard I.], 174 A.D.3d 977, 980, 107 N.Y.S.3d 444 [2019] [internal quotation marks and citations omitted]; see Matter of Kapreece SS. [Latasha SS.], 128 A.D.3d 1114, 1115–1116, 9 N.Y.S.3d 417 [2015], lv denied 26 N.Y.3d 903, 2015 WL 5154932 [2015] ).

The record supports Family Court's determination that, despite petitioner's diligent efforts, respondents failed to meaningfully plan for the children's future for a period of at least one year. The testimony at the hearing, including respondents’ own admissions, evinces that both respondents failed to attend several scheduled meetings with their caseworkers and therapist. Significantly, respondents often missed service plan review meetings and sessions with their caseworker, thus hindering petitioner's work in providing them with particularized assistance. Their caseworker and therapist testified that, when respondents did attend sessions, they did not exhibit any progress towards achieving the permanency goals. More specifically, the father regularly exhibited a short temper and aggressive behavior and the mother failed to provide any insight into the work done with petitioner, at times offering no response when asked about her progress. The father also did not permit the mother to talk at one session with the therapist, thus impeding her progress in this regard. Nonetheless, the mother, at one point, acknowledged that she had not made any progress towards meeting the permanency goals. Relatedly, the father admitted that he did not engage in mental health treatment, despite being diagnosed with bipolar depression. Similarly, the mother admitted that she did not participate in mental health treatment during periods when she did not have health insurance, despite petitioner's efforts in helping her secure coverage.

Importantly, as Family Court found, the hearing record evinces that respondents failed to acknowledge the allegations of sexual abuse against Makayla and Annabella. To that end, although the mother at one point secured temporary housing separate from the father upon domestic violence allegations, she ultimately resided with him despite petitioner's recommendations to the contrary and the fact that court orders prohibiting contact between the father and Annabella were in place. The mother also, for some time, continued to live with the grandfather and allowed him to transport her to sessions with the children's therapists and her caseworker. This unwillingness by respondents to acknowledge the children's allegations of abuse substantially hindered petitioner's work with them and the children. Contrary to respondents’ assertion, the fact that they complied with some of petitioner's directives does not warrant a different finding given that "a parent's ongoing...

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