Warren Cnty. Dep't of Soc. Servs. v. Meriah GG. (In re Timothy GG.)

• Decision Date: 05 July 2018
• Docket Number: 523685
• Citation: 163 A.D.3d 1065,81 N.Y.S.3d 311
• Parties: In the MATTER OF TIMOTHY GG., Alleged to be a Permanently Neglected Child. Warren County Department of Social Services, Respondent; v. Meriah GG., Appellant. (Proceeding No. 1.) In the Matter of Jody C., Appellant, v. Meriah GG., Respondent, et al., Respondent. (Proceeding No. 2.) (and Other Related Proceedings.)
• Court: New York Supreme Court — Appellate Division

163 A.D.3d 1065

81 N.Y.S.3d 311

In the MATTER OF TIMOTHY GG., Alleged to be a Permanently Neglected Child.

Warren County Department of Social Services, Respondent;

v.Meriah GG., Appellant. (Proceeding No. 1.)

In the Matter of Jody C., Appellant,

v.Meriah GG., Respondent, et al., Respondent. (Proceeding No. 2.)

(and Other Related Proceedings.)

523685

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

Calendar Date: June 1, 2018

Decided and Entered: July 5, 2018

Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for Meriah GG., appellant in proceeding No. 1 and respondent in proceeding No. 2.

Noreen McCarthy, Keene Valley, for Jody C., appellant.

James B. Lesperance Jr., Warren County Department of Social Services, Lake George, for Warren County Department of Social Services, respondent.

Rose T. Place, Glens Falls, attorney for the child.

Before: McCarthy, J.P., Lynch, Devine, Clark and Rumsey, JJ.

MEMORANDUM AND ORDER

McCarthy, J.P.

Appeals from an amended order and order of the Family Court of Warren County (Wait, J.), entered February 23, 2016 and August 18, 2016, which, among other things, granted petitioner's application, in proceeding No. 1 pursuant to Social Services Law § 384–b, to adjudicate the subject child to be permanently neglected, and terminated respondent's parental rights.

Respondent Meriah GG. (hereinafter the mother) is the mother of the subject child (born in 2010). In October 2013, petitioner Warren County Department of Social Services (hereinafter DSS) removed the child from the mother's home and filed a neglect petition due to her drug use. In January 2014, the mother was incarcerated. In February 2014, petitioner Jody C. (hereinafter the grandmother), who was also then incarcerated, filed a petition for visitation and was granted permission to make phone calls and write letters to the child while he was in foster care. The mother later admitted to some of the allegations in DSS's neglect petition, and Family Court (Breen, J.) found the child to be neglected and continued his placement in foster care. During the summer of 2014, the mother was briefly released from jail, but thereafter violated probation and was sentenced to six years in prison.

In January 2015, the grandmother was released from prison and filed petitions for custody of the child and to terminate the child's placement in foster care. In February 2015, DSS opposed the grandmother's petitions and filed a petition to terminate the mother's parental rights based on permanent neglect.¹ The grandmother subsequently sought in-person visitation with the child. Although Family Court (Wait, J.) granted the grandmother's motion to require DSS to investigate her as a possible custodial resource (see Family Ct Act § 1017 ), the court postponed decision on her requests for additional visitation.

Following a fact-finding hearing on the permanent neglect petition, in February 2016 Family Court determined that the mother failed to plan for the child's future, resulting in permanent neglect. The court then held a dispositional hearing, at which it also addressed the grandmother's petitions. After the hearing concluded, but before the court issued a decision, the grandmother was incarcerated for violating her parole. In an August 2016 order, the court terminated the mother's parental rights, authorized DSS to consent to the child's adoption and dismissed the grandmother's petitions. The mother appeals from the February 2016 amended order, and both she and the grandmother appeal from the August 2016 order.

Initially, because the February 2016 fact-finding order is nondispositional, the mother's appeal from it must be dismissed (see Family Ct Act § 1112[a] ; Matter of Kaylee JJ. [Jennifer KK.], 159 A.D.3d 1077, 1077 n., 71 N.Y.S.3d 220 [2018] ). "Nevertheless, issues from the fact-finding phase of the proceeding may be raised on our review of the dispositional order" ( Matter of Jah'Meir G. [Eshale G.], 112 A.D.3d 1014, 1015, 976 N.Y.S.2d 601 [2013] [citations omitted], lv denied 22 N.Y.3d 863, 2014 WL 1243320 [2014] ; see CPLR 5501[a][1] ).

Family Court erred in imposing concurrent and contradictory permanency goals of return the child to parent and free the child for adoption. As we have previously held, the statute permits imposition of only one permanency goal (see Matter of Julian P. [Melissa P.–Zachary L.], 106 A.D.3d 1383, 1384, 966 N.Y.S.2d 563 [2013] ; Matter of Dakota F. [Angela F.], 92 A.D.3d 1097, 1099, 939 N.Y.S.2d 586 [2012] ; see also Family Ct Act § 1089[d][2][i] ). Despite the language in the permanency orders, it appears that the court intended to impose a permanency goal of return to parent but with the intention that DSS engage in concurrent planning for the child in case he could not be returned to the mother (see Matter of Dakota F. [Angela F.] , 92 A.D.3d at 1099 n 4, 939 N.Y.S.2d 586 ). Because no one appealed from the permanency orders setting forth concurrent goals, and the court generally proceeded as if the goal was to return the child to the mother, we do not find that this error requires reversal (see Matter of Samuel DD. [Margaret DD.] , 123 A.D.3d 1159, 1163 n 4, 998 N.Y.S.2d 239 [2014], lv denied 24 N.Y.3d 918, 2015 WL 753757 [2015] ; compare Matter of Dakota F. [Angela F.], 92 A.D.3d at 1098, 939 N.Y.S.2d 586 ).

The mother and the grandmother argue that DSS and Family Court violated Family Ct Act § 1017. That statute provides that, "when the court determines that a child must be removed from his or her home" based on abuse or neglect, or placed as part of a disposition upon adjudication per Family Ct Act § 1055, the court shall direct the local commissioner of social services to immediately locate and investigate any non-respondent parent, relatives of the child and other suitable persons identified by a parent or child as a placement resource, and inform them of the pendency of the proceeding and the opportunity to seek custody of the child ( Family Ct Act § 1017[1][a] ). After the investigation, the court must determine "whether there is a non-respondent parent, relative or suitable person with whom such child may appropriately reside" ( Family Ct Act § 1017[1][c] ). "[A] placement order must be set aside if a failure to comply with the statute prejudiced either the rights of a relative to seek placement or the child's right to be placed with a suitable relative" ( Matter of Randi NN. [Joseph MM.Kimberly MM.], 68 A.D.3d 1458, 1460, 891 N.Y.S.2d 521 [2009] [internal citation omitted]; see Matter of Elizabeth YY. v. Albany County Dept. of Social Servs., 229 A.D.2d 618, 620–621, 644 N.Y.S.2d 856 [1996] ).

DSS delayed in investigating the grandmother as a relative resource, though some of the delay is attributable to the grandmother incorrectly answering questions on her original application. Although we do not condone DSS's delay, the record does not establish that anyone was prejudiced by it. When DSS did conduct its Family Ct Act § 1017 investigation, DSS concluded that the grandmother was not suitable as a placement for the child due to her prior substance abuse, criminal history, indicated child protective reports and currently being on parole. Family Court eventually agreed with that assessment. Because the grandmother was not someone with whom the child could appropriately reside, any delay in the investigation was not prejudicial.

DSS did not conduct an investigation into the mother's cousin. Notably, Family Ct Act § 1017 speaks in terms of conducting an investigation into relatives at the time that the court determines that the child must be removed from the parent (see Family Ct Act § 1017[1] ). The statute does not seem to create a duty for DSS to seek out possible relatives in perpetuity, potentially for years, while a child remains in foster care. When the child was removed, DSS considered as possible placement resources the grandmother (who was then incarcerated), the mother's aunt (who obtained visits but informed DSS that she was unable to take custody of the child) and at least one of the mother's friends (who also could not take custody). The mother did not identify her cousin as a possible resource, and DSS investigated everyone who she did identify. It was not until two years after the child's removal, and only a few days before the commencement of the permanent neglect hearing, that the cousin applied for approval as a relative resource. Family Court wondered where the cousin had been and why she had not sought to be involved earlier (see Matter of Elizabeth YY. v. Albany County Dept. of Social Servs., 229 A.D.2d at 620–621, 644 N.Y.S.2d 856 ). The cousin did not file any motion or petition for custody and, although she was present at the dispositional hearing, did not testify. Under the circumstances, neither DSS nor the court violated Family Ct Act § 1017.

Family Court did not abuse its discretion in precluding the mother from calling the grandmother to testify at the fact-finding hearing. In general, hearing courts have broad discretion concerning what evidence is admitted at a hearing (see Matter of Gardner v. Gardner , 69 A.D.3d 1243, 1244, 893 N.Y.S.2d 698 [2010] ; Matter of Hover v. Shear, 232 A.D.2d 749, 750, 648 N.Y.S.2d 718 [1996], lv dismissed and denied 89 N.Y.2d 964, 655 N.Y.S.2d 883, 678 N.E.2d 495 [1997] ; see also Feldsberg v. Nitschke, 49 N.Y.2d 636, 643–644, 427 N.Y.S.2d 751, 404 N.E.2d 1293 [1980] ). Here, the proffer indicated that the grandmother's proposed testimony would address the mother's plan for the grandmother to obtain custody until the mother's release from prison.² DSS stated that the mother had established, and it was not controverted, that this was her plan, so the grandmother's testimony was unnecessary. The court noted that the permanency plan was return to parent, which included a requirement that DSS investigate whether any appropriate relatives are available as alternative placements, and DSS's records showed the grandmother's contacts...