Opinion
9001
04-16-2019
IN RE MICAH T., a Child Under Eighteen Years of Age, etc., Josette D., Respondent–Appellant, v. Administration for Children's Services, Petitioner–Respondent. In re Jahknai K. -C. D., and Others, Dependent Children under Eighteen Years of Age, etc., Josette D., Respondent–Appellant, v. Children's Aid Society, Petitioner–Respondent.
Larry S. Bachner PC, New York, (Larry S. Bachner of counsel), for appellant. Rosin Steinhagen Mendel, PLLC, New York (Melissa Wagshul of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (John A. Newbery of counsel), attorney for the children.
Larry S. Bachner PC, New York, (Larry S. Bachner of counsel), for appellant.
Rosin Steinhagen Mendel, PLLC, New York (Melissa Wagshul of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (John A. Newbery of counsel), attorney for the children.
Renwick, J.P., Gische, Kapnick, Kern, Moulton, JJ.
Order, Family Court, New York County (Clark V. Richardson, J), entered on or about March 16, 2018, which, upon a finding of neglect against respondent mother as to her daughter Micah, awarded custody of Micah to her father, and which found a violation of the suspended judgment and terminated the mother's parental rights as to her children Jahknai, Jericho, and Kymahni, and committed them to the care and custody of the Commissioner of Social Services and petitioner agency for purposes of adoption, unanimously affirmed, without costs.
The Family Court's finding that respondent failed to comply with material terms of the suspended judgment is supported by a preponderance of the evidence (see In re Kendra C.R. [Charles R.], 68 A.D.3d 467, 890 N.Y.S.2d 51 [1st Dept. 2009], lv dismissed and denied 14 N.Y.3d 870, 903 N.Y.S.2d 329, 929 N.E.2d 391 [2010] ). Respondent failed to ensure that her children attend court-ordered family therapy on a weekly basis (see Matter of Lourdes O., 52 A.D.3d 203, 859 N.Y.S.2d 78 [1st Dept. 2008] ), failed to attend required individual therapy, failed to sign releases for the agency to obtain the children's medical records, and failed to attend required conferences with the agency, all of which were required terms of the suspended judgment. In addition, her act of relocating all four children to Florida, and enrolling them in school there, without prior knowledge or approval of the court, or the agency, and failing to provide an accurate address in Florida were violations of the suspended judgment, as the mother was aware that she could not relocate the children before the conclusion of this action.
A preponderance of the evidence supported the Family Court's finding that termination of the mother's parental rights to Jahknai, Jericho, and Kymahni was in these children's best interests, given the evidence that the children were well-cared for in their kinship foster home and wished to be adopted by their maternal aunt ( Kendra C.R., 68 A.D.3d at 468, 890 N.Y.S.2d 51 ).
The evidence amply supports Family Court's neglect finding with respect to the child Micah. The mother's untreated mental health condition placed Micah at imminent risk of harm (see Matter of Catherine M. [Catherine L.], 151 A.D.3d 517, 517, 56 N.Y.S.3d 97 [1st Dept. 2017], lv denied 30 N.Y.3d 927, 62 N.Y.S.3d 289, 84 N.E.3d 960 [2017] ). The record included evidence that the mother had a diagnosis of personality disorder NOS with narcissistic and borderline traits, but refused to attend individual counseling, and, in the months immediately prior to the petition, made bizarre, delusional statements to the family therapist. Moreover, as noted, the mother impulsively moved herself, Micah, and the other three children to Florida, without providing notice to Micah's father, the agency, or the court. In taking these steps, respondent disregarded Micah's emotional health, as she was suddenly removed from her usual surroundings and prevented from seeing her father, who had been awarded temporary custody and with whom she lived on a regular basis (see Matter of Sayeh R., 91 N.Y.2d 306, 670 N.Y.S.2d 377, 693 N.E.2d 724 [1997] ). The evidence provided a sound and substantial basis for the Family Court to find it was in this child's best interests to award custody to the father (see Matter of Bunita B. v. Mark P., 166 A.D.3d 565, 89 N.Y.S.3d 55 [1st Dept. 2018] ).
Respondent's due process arguments are unavailing in light of the fact that six different attorneys had been appointed to represent her, all of whom were relieved because she refused to work with them, such that she effectively exhausted her right to assigned counsel (see Matter of Montrell A.D. [Miguel D.], 161 A.D.3d 411, 411–12, 75 N.Y.S.3d 174 [1st Dept. 2018], lv denied 31 N.Y.3d 913, 2018 WL 3148011 [2018] ). Moreover, the Family Court sufficiently advised respondent of the risks of self-representation and ensured that her waiver of the right to counsel was made knowingly, willingly, and voluntarily (see Matter of Emma L., 35 A.D.3d 250, 252, 826 N.Y.S.2d 52 [1st Dept. 2006], lv dismissed and denied 8 N.Y.3d 904, 834 N.Y.S.2d 76, 865 N.E.2d 1242 [2007] ).
We have considered respondent's remaining arguments and find them unavailing.