Tioga Cnty. Dep't of Soc. Servs. v. Richard I. (In re Isabella H.)

• Citation: 107 N.Y.S.3d 444,174 A.D.3d 977
• Decision Date: 03 July 2019
• Docket Number: 526342
• Parties: In the MATTER OF ISABELLA H., Alleged to be a Permanently Neglected Child. Tioga County Department of Social Services, Respondent; v. Richard I., Appellant.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 977

107 N.Y.S.3d 444

In the MATTER OF ISABELLA H., Alleged to be a Permanently Neglected Child.

Tioga County Department of Social Services, Respondent;

v.Richard I., Appellant.

526342

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

Calendar Date: June 7, 2019

Decided and Entered: July 3, 2019

Sarah E. Cowen, Sidney, for appellant.

Tioga County Department of Social Services, Owego (Christian Root of counsel), for respondent.

Alena E. Van Tull, Binghamton, attorney for the child.

Before: Egan Jr., J.P., Lynch, Mulvey, Devine and Rumsey, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P. Appeals from a decision and two orders of the Family Court of Tioga County (Keene, J.), entered September 28, 2017, October 13, 2017 and February 2, 2018, which granted petitioner's application, in a proceeding pursuant to Social Services Law § 384–b, to adjudicate the subject child to be permanently neglected, and terminated respondent's parental rights.

The subject child (born in 2013) was removed from the mother's care when she was three months old and placed in foster care.¹ Thereafter, respondent, who was incarcerated, learned that he might be the child's father and, in August 2014, his paternity was established in a paternity proceeding. Respondent then became involved with petitioner and disclosed his lengthy history of substance abuse and his various mental health diagnoses. Petitioner attempted to engage respondent in services, but respondent continued to participate in criminal activity and was jailed from February 2015 through July 2015 and from December 2015 through April 2016. In February 2016, during respondent's second period of incarceration, petitioner commenced this permanent neglect proceeding to terminate respondent's parental rights. Following a fact-finding hearing, Family Court made findings of permanent neglect and granted petitioner's application. After a dispositional hearing, the court terminated respondent's parental rights and freed the child for adoption. Respondent appeals.²

When an agency seeks to terminate parental rights on the basis of permanent neglect, it must, as a threshold matter, prove by "clear and convincing evidence that it made diligent efforts to encourage and strengthen the parent-child relationship" ( Matter of Zyrrius Q. [Nicole S.] , 161 A.D.3d 1233, 1233–1234, 75 N.Y.S.3d 378 [2018], lv denied 32 N.Y.3d 903, 2018 WL 4259185 [2018] ; Matter of Cordell M. [Cheryl O.] , 150 A.D.3d 1424, 1425, 53 N.Y.S.3d 728 [2017] ). This requires that the agency "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 Alexander Z. [Jimmy Z.] , 149 A.D.3d 1177, 1178, 51 N.Y.S.3d 231 [2017] [internal quotation marks, brackets and citations omitted]; see Matter of Jace N. [Jessica N.] , 168 A.D.3d 1236, 1237, 92 N.Y.S.3d 425 [2019], lv denied 32 N.Y.3d 918, 2019 WL 1284920 [2019] ; Matter of Kaylee JJ. [Jennifer KK.] , 159 A.D.3d 1077, 1077, 71 N.Y.S.3d 220 [2018] ).

The barriers to reunification, as testified to by both respondent and a caseworker, were respondent's mental health issues, substance abuse, housing instability and history of frequent criminal activity. In September 2014, after respondent was adjudicated to be the child's father, petitioner put together a service plan that included mental health evaluation and treatment, drug and alcohol evaluation and treatment and parenting classes, as well as conditions that respondent have stable housing for at least six months and refrain from criminal activity. Notwithstanding the availability of such services and the comprehensive nature of the service plan, respondent did little to engage in such services, which he blames on the fact that petitioner did not offer him financial assistance and made visitation difficult. This contention, however, is belied by the record. Respondent initially went for a substance abuse evaluation at a facility near his home in neighboring Chemung County; however, treatment at that facility proved cost prohibitive because that facility did not accept his insurance. When petitioner learned of this issue, caseworkers helped locate a facility in Tioga County that would accept respondent's insurance and provided him with a bus pass to get to treatment there. Although the bus was disagreeable to respondent and he elected not to utilize the bus pass, it was nevertheless made available to him so that he could access treatment and other services. Additionally, petitioner arranged for the Department of Social Services in Chemung County to help coordinate services near respondent's home. Caseworkers from both counties regularly met with petitioner to monitor his progress and provided him various assistance, including help with budgeting, which revealed that, after paying his bills, respondent had more than $300 each month in discretionary income. The Chemung County caseworkers testified that they made regular home visits to respondent and that, although some of his living situations were acceptable, others were not. They also noted that he moved around frequently – living in multiple apartments over a period of only a few months.

Contrary to respondent's contention, petitioner also facilitated regular visitation with the child. At first, respondent had friends that, in exchange for gas money, drove respondent to visits. When respondent began having trouble making these payments to his friends, petitioner provided him with gas cards. Later, respondent's friends were not always able to drive him or tolerate his erratic behavior, and he began to miss visits. Similarly, the quality of the visits deteriorated over time. Respondent became defensive when caseworkers offered coaching, made unusual and inappropriate comments to the caseworkers and refused to utilize the resources provided by the caseworkers. Despite such issues, petitioner attempted to continue visitation when respondent was incarcerated, but after attempting four visits, which went poorly and were extremely upsetting to the child, petitioner discontinued the visits. In these circumstances, we find respondent's argument that petitioner failed to accommodate his unique needs and did not encourage visitation to be unavailing. Petitioner "was obligated to only make reasonable efforts, and it will be deemed to have fulfilled its obligation if appropriate services are offered but the parent refuses to engage in them or does not progress" ( Matter of Everett H. [Nicole H.] , 129 A.D.3d 1123, 1125–1126, 10 N.Y.S.3d 676 [2015] [internal quotation marks and citation omitted]; see Matter of Paige J. [Jeffrey K.] , 155 A.D.3d 1470, 1474–1475, 65 N.Y.S.3d 357 [2017] ). Accordingly, we find ample support in the record that petitioner discharged its duty to make diligent efforts to encourage and strengthen respondent's relationship with the child (see Matter of Logan C. [John C.] , 169 A.D.3d 1240, 1242–1243, 94 N.Y.S.3d 696 [2019] ; Matter of Jessica U. [Stephanie U.] , 152 A.D.3d 1001, 1003–1004, 59 N.Y.S.3d 195 [2017] ).

Having met this threshold burden, the inquiry turns to whether petitioner proved by clear and convincing evidence that respondent failed to plan for the child's future (see Matter of Timothy GG. [Meriah GG.] , 163 A.D.3d 1065, 1070, 81 N.Y.S.3d 311 [2018], lvs denied 32 N.Y.3d 908, 89 N.Y.S.3d 115, 113 N.E.3d 949 [2018] ). Planning for the child's future means "to take such steps as may be necessary to provide an adequate, stable home and parental care for the child within a period of time which is reasonable under the financial circumstances available to the parent" ( 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" ( Social Services Law § 384–b [7 ][c]; see Matter of Kapreece S. [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] ; Matter of Samuel DD. [Margaret DD.] , 123 A.D.3d 1159, 1162, 998 N.Y.S.2d 239 [2014], lv denied 24 N.Y.3d 918, 2015 WL 753757 [2015] ).

During the relevant time period, respondent completed a parenting class, but continued to struggle with his parenting skills. Several caseworkers testified that he was disengaged during visitations, resistant to coaching, unable to assess and respond to the child's needs and disparaged the child's mother and the caseworkers in front of the child. Respondent also failed to address his mental health and substance abuse issues. Respondent underwent a substance abuse evaluation in October 2014 and was diagnosed as alcohol and cocaine dependent. Although, at the time, he claimed that he had not had any alcohol in one month or any cocaine in 18 months, he refused a drug test. One caseworker testified that respondent often insisted that he did not need drug or alcohol treatment, but that she suspected that he was using drugs because he continued to engage in criminal activity and, during one arrest, was charged with criminal possession of a controlled substance. Respondent's friend also testified that he suspected that respondent was using drugs because, in early 2015, a mutual acquaintance reported seeing respondent at a house where drugs were sold and, when the friend drove respondent to visits with the child, respondent confessed that he wanted to use crack cocaine and stated that he knew where he could get some. Respondent denied these allegations, but admitted that he did not engage in drug or alcohol treatment. Respondent also admitted that he was not engaged in mental health treatment and had...