Opinion
2012-01-31
In the Matter of GERALD G., JR., and Sylvanna G.Erie County Department of Social Services, Petitioner–Respondent;Orena G., Respondent–Appellant.
Charles J. Greenberg, Buffalo, for Respondent–Appellant. Joseph T. Jarzembek, Buffalo, for Petitioner–Respondent.
Charles J. Greenberg, Buffalo, for Respondent–Appellant. Joseph T. Jarzembek, Buffalo, for Petitioner–Respondent. David C. Schopp, Attorney for the Child, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel), for Gerald G., Jr.Mary Anne Connell, Attorney for the Child, Buffalo, for Sylvanna G.
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ.
MEMORANDUM:
Respondent mother appeals from an order that, inter alia, terminated her parental rights with respect to two of her children. Contrary to the mother's contention, “[p]etitioner met its initial burden of establishing by clear and convincing evidence that it made the requisite diligent efforts to encourage and strengthen the [mother's] relationship with the child[ren]” ( Matter of Rachael N., 70 A.D.3d 1374, 894 N.Y.S.2d 265, lv. denied 15 N.Y.3d 708, 2010 WL 3583146; see Matter of Geoffrey N., 16 A.D.3d 1167, 790 N.Y.S.2d 793). Petitioner was not required to ensure that the mother succeeded in overcoming her obstacles but, rather, the mother was required to assume some responsibility in dealing with those challenges ( see Matter of La'Derrick J.W., 85 A.D.3d 1600, 1601, 925 N.Y.S.2d 741, lv. denied 17 N.Y.3d 709, 2011 WL 4089938; Matter of Whytnei B., 77 A.D.3d 1340, 907 N.Y.S.2d 760). Here, the record establishes that the mother was unable to keep her house clean, to budget properly or to parent the children properly. Indeed, during the three years in which the proceeding was pending, the mother never progressed beyond supervised visitation with the children. Further, the expert psychologists for both petitioner and the mother testified that the mother was not yet able to assume parenting duties for the children. Although the mother attended parenting and domestic violence classes, the evidence establishing that she was “inconsistently applying the knowledge and benefits she obtained from the services provided[ and] arguing with various service providers and professionals” sufficiently supported a finding that she failed to articulate a realistic plan for the children's return to her care ( Matter of Douglas H., 1 A.D.3d 824, 825, 767 N.Y.S.2d 173, lv. denied 2 N.Y.3d 701, 778 N.Y.S.2d 459, 810 N.E.2d 912; see Matter of Elijah NN., 20 A.D.3d 728, 730, 798 N.Y.S.2d 252). Thus, the evidence in the record establishes that the mother failed to “plan for the future of the child[ren], although physically and financially able to do so” (Social Services Law § 384–b [7][a]; see Family Ct. Act § 611).
We reject the mother's further contention that terminating her parental rights was not in the best interests of the children. Upon a finding of permanent neglect, “[a]n order of disposition shall be made ... solely on the basis of the best interests of the child, and there shall be no presumption that such interests will be promoted by any particular disposition” (Family Ct. Act § 631). The record establishes that the subject children had been in petitioner's care for approximately four years when the order on appeal was entered, and that they were thriving in their foster home. In contrast, the record establishes that, when the children were removed from the mother's care, the son was often nervous and uncontrollable, and the daughter was experiencing a physical failure to grow. Contrary to the contention of the mother, “ ‘[t]he progress made by [her] in the months preceding the dispositional determination was not sufficient to warrant any further prolongation of the child[ren]'s unsettled familial status' ” ( Matter of Roystar T., 72 A.D.3d 1569, 1569, 899 N.Y.S.2d 508, lv. denied 15 N.Y.3d 707, 2010 WL 3546278). Finally, we reject the mother's further contention that Family Court abused its discretion in denying her request for a suspended judgment ( see Matter of Arella D.P.-D., 35 A.D.3d 1222, 825 N.Y.S.2d 411, lv. denied 8 N.Y.3d 809, 834 N.Y.S.2d 507, 866 N.E.2d 453).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.