Opinion
01-17-2017
In re KIMBERLY F., A Child under Eighteen Years, etc., Maria F., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Amy Hausknecht of counsel), attorney for the child.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Amy Hausknecht of counsel), attorney for the child.
ACOSTA, J.P., MAZZARELLI, MANZANET–DANIELS, WEBBER, GESMER, JJ.
Order of fact-finding and disposition (one paper), Family Court, New York County (Stewart H. Weinstein, J.), entered on or about October 27, 2014, to the extent it found that respondent Maria F. neglected the subject child, unanimously affirmed, without costs. Appeal from so much of said order as limited Maria F.'s visitation with the child to only upon the child's request, unanimously dismissed, without costs, as academic.
The Family Court's finding of neglect against respondent is supported by a preponderance of the evidence (Family Ct. Act §§ 1012[f][i][B] ; 1046[b] [i] ). After respondent was notified about a January 9, 2013 incident, she stated that the child was lying about being raped and refused to take her back into her home or discuss services with petitioner (see Matter of Stephanie M. [Miguel R.], 122 A.D.3d 508, 509, 997 N.Y.S.2d 59 [1st Dept.2014], lv. denied 24 N.Y.3d 916, 2015 WL 651920 [2015] ). The fact that respondent would have considered voluntary placement if she had been made aware of it at the time is of no moment, because voluntary placement is appropriate only when the parent is unable to care for his or her child, and not when he or she is unwilling to do so (see Matter of Amondie T. [Karen S.], 107 A.D.3d 498, 499, 968 N.Y.S.2d 20 [1st Dept.2013] ).
Contrary to respondent's contention, by failing to offer a plan for the child other than foster care, she placed the child in imminent risk of harm and/or impairment, because her statements and actions reflected her clear intention to abdicate her parental obligations, including her responsibility to adequately plan for the child's needs (see Matter of Shawntay S. [Stephanie R.], 114 A.D.3d 502, 979 N.Y.S.2d 815 [1st Dept.2014] ). Respondent's claims that her health problems and/or concerns prevented her from caring from the child were properly rejected by the court because they were undocumented. The fact that the child may have had disciplinary issues and petitioner may have previously failed to respond to a request for assistance with the child does not explain her failure to cooperate with petitioner's efforts to return the child home (see Matter of Clayton OO. [Nikki PP.], 101 A.D.3d 1411, 1412, 956 N.Y.S.2d 328 [3d Dept.2012] ; Matter of Jalil McC. [Denise C.], 84 A.D.3d 1089, 1090, 924 N.Y.S.2d 420 [2d Dept.2011] ).
Respondent's challenge to the visitation portion of the dispositional order has been rendered academic in light of the fact that she has surrendered her parental rights to the child and does not claim that she reserved rights of visitation and communication with the child as permitted by Social Services Law § 383–c.