Opinion
2012-12-20
In the Matter of ALYSHEIONNA HH., Alleged to be a Permanently Neglected Child. Cortland County Department of Social Services, Respondent; v. Tara II., Appellant. (And Another Related Proceeding.)
Kelly M. Corbett, Fayetteville, for appellant. Ingrid Olsen Tjensvold, Cortland County Department of Social Services, Cortland, for respondent.
Kelly M. Corbett, Fayetteville, for appellant. Ingrid Olsen Tjensvold, Cortland County Department of Social Services, Cortland, for respondent.
Randolph V. Kruman, Cortland, attorney for the child.
Before: MERCURE, J.P., LAHTINEN, MALONE JR., STEIN and GARRY, JJ.
MALONE JR., J.
Appeals from two decisions and two orders of the Family Court of Cortland County (Campbell, J.), entered October 31, 2011, November 22, 2011, December 7, 2011 and February 1, 2012, which, among other things, granted petitioner's application, in a proceeding pursuant to Social Services Law § 384–b, to adjudicate Alysheionna HH. to be a permanently neglected child, and terminated respondent's parental rights.
Respondent's daughter (born in 2009) was removed from respondent's custody at birth. The child was adjudicated, upon consent, to be a neglected child and placed with petitioner.
Following petitioner's June 2011 commencement of this Social Services Law § 384–b proceeding, Family Court found, after a hearing, that the child was permanently neglected and terminated respondent's parental rights. Respondent appeals.
While respondent was pregnant with the child at issue, Family Court adjudged her other child to be permanently neglected and placed him with a relative.
Respondent's appeals from the decisions entered October 31, 2011 and December 7, 2011 must be dismissed as no appeal lies from a decision of the court ( seeCPLR 5512[a] ). The November 22, 2011 fact-finding order is also not appealable ( see Matter of Alyssa L. [Deborah K.], 93 A.D.3d 1083, 1084–1085, 941 N.Y.S.2d 740 [2012] ). However, Family Court's findings may be challenged in the context of respondent's appeal from the February 1, 2012 dispositional order ( see Matter of Arianna I., 100 A.D.3d 1281, 1282, n. 1, 955 N.Y.S.2d 413 [2012] ).
Respondent does not dispute that petitioner met its threshold burden of establishing that it “made diligent efforts to encourage and strengthen the parental relationship” (Social Services Law § 384–b [7][a]; see Matter of Hailey ZZ. [Ricky ZZ.], 19 N.Y.3d 422, 429, 948 N.Y.S.2d 846, 972 N.E.2d 87 [2012] ). Instead, she contends that petitioner did not establish by clear and convincing evidence “that respondent failed—for a period of more than a year—to ‘substantially and continuously or repeatedly ... maintain contact with or plan for the future of the child, although physically and financially able to do so’ ” (Matter of Jyashia RR. [John VV.], 92 A.D.3d 982, 984, 938 N.Y.S.2d 645 [2012], quoting Social Services Law § 384–b [7][a]; seeFamily Ct. Act § 614[1][d] ).
Petitioner acknowledges that respondent has maintained contact with the child throughout her placement with petitioner, but argues that respondent failed to adequately plan for the child's future. Importantly, “contact and planning are alternative elements, and proof of failure to perform one [of these elements] is sufficient to sustain a finding of permanent neglect” (Matter of Jyashia RR. [John VV.], 92 A.D.3d at 984, 938 N.Y.S.2d 645 [internal quotations marks and citations omitted]; see Matter of Chorus SS. [Elatisha SS.], 93 A.D.3d 1097, 1098, 941 N.Y.S.2d 745 [2012],lv. denied 19 N.Y.3d 807, 2012 WL 2401592 [2012] ). Here, notwithstanding respondent's participation in some of the proffered services, the testimony of, among others, her caseworker, a family educator who monitored respondent's visits with the child, and the child's foster parents reveals that her parenting skills did not meaningfully improve, her employment was intermittent, her living arrangements remained unstable, and she consistently failed to accept the role that her conduct played in the removal of her children. Although respondent claims that she improved in all of these areas, we defer to Family Court's credibility assessments ( see Matter of Summer G. [Amy F.], 93 A.D.3d 959, 961, 939 N.Y.S.2d 663 [2012];Matter of Syles DD. [Felicia DD.], 91 A.D.3d 1054, 1055, 937 N.Y.S.2d 390 [2012],lv. denied18 N.Y.3d 810, 2012 WL 1033640 [2012] ), and find that the court's conclusion that respondent permanently neglected the child is supported by a sound and substantial basis in the record.
Respondent next contends that Family Court abused its discretion in ordering termination of her parental rights rather than a suspended judgment because respondent had made significant strides in the month since the fact-finding hearing. However, the testimony at the dispositional hearing established that respondent's situation had not improved; indeed, both her employment and living arrangements remained unstable. On the other hand, the foster parents—with whom the child has resided since birth and who wish to adopt her—continued to provide a stable, nurturing home for the child and facilitate her relationship with her brother and her grandmother. Accordingly, Family Court's decision to terminate respondent's parental rights and free the child for adoption is in the child's best interests and is not an abuse of discretion ( see Matter of Crystal JJ. [Sarah KK.], 85 A.D.3d 1262, 1264, 924 N.Y.S.2d 627 [2011],lv. denied17 N.Y.3d 711, 2011 WL 4835727 [2011];Matter of Kellcie NN. [Sarah NN.], 85 A.D.3d 1251, 1253, 924 N.Y.S.2d 617 [2011] ).
The father previously executed a judicial surrender of his parental rights.
ORDERED that the appeals from the decisions entered October 31, 2011 and December 7, 2011 and from the order entered November 22, 2011 are dismissed, without costs.
ORDERED that the order entered February 1, 2012 is affirmed, without costs.