Opinion
2019–14170 Docket No. B–17379–16
06-09-2021
In the MATTER OF GEDDIAH S.R. (Anonymous). MercyFirst, appellant; v. Seljeana P. (Anonymous), respondent-respondent, et al., respondent.
Warren & Warren, P.C., Brooklyn, N.Y. (Ira L. Eras of counsel), for appellant. Brooklyn Defender Services, Family Defense Practice, Brooklyn, N.Y. (Lauren Shapiro and Amy Mulzer of counsel), for respondent-respondent. Vivienne Marie Hewitt, Brooklyn, NY, attorney for the child.
Warren & Warren, P.C., Brooklyn, N.Y. (Ira L. Eras of counsel), for appellant.
Brooklyn Defender Services, Family Defense Practice, Brooklyn, N.Y. (Lauren Shapiro and Amy Mulzer of counsel), for respondent-respondent.
Vivienne Marie Hewitt, Brooklyn, NY, attorney for the child.
HECTOR D. LASALLE, P.J., CHERYL E. CHAMBERS, BETSY BARROS, ANGELA G. IANNACCI, JJ.
DECISION & ORDER In a proceeding pursuant to Social Services Law § 384–b, the petitioner appeals from an order of the Family Court, Kings County (Elizabeth Barnett, J.), dated August 27, 2019. The order, insofar as appealed from, after a fact-finding hearing, dismissed that branch of the petition which was to terminate the parental rights of the mother on the ground of permanent neglect.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The petitioner commenced this proceeding, inter alia, to terminate the mother's parental rights to the subject child on the ground of permanent neglect. After a fact-finding hearing, the Family Court found that the petitioner failed to establish, by clear and convincing evidence, that it made diligent efforts to strengthen the mother's parental relationship with the child, or that the mother failed to maintain contact with the child or plan for his future, and dismissed that branch of the petition which was to terminate the mother's parental rights. The petitioner appeals.
"When a foster care agency brings a proceeding to terminate parental rights on the ground of permanent neglect, it must, as a threshold matter, prove by clear and convincing evidence that it has fulfilled its statutory duty to exercise diligent efforts to encourage and strengthen the parent-child relationship" ( Matter of Christopher John B. [Christopher B.], 87 A.D.3d 1133, 1134, 930 N.Y.S.2d 224 ; see Social Services Law § 384–b[3][g] ; [4][d]; [7][a]; Matter of Imani L.J. [Shaunta J.], 166 A.D.3d 616, 617, 87 N.Y.S.3d 218 ; Matter of Samatha B. [Cynthia J.], 159 A.D.3d 1006, 1007–1008, 73 N.Y.S.3d 227 ; Matter of Endoran E.H. [Elliot R.H.], 132 A.D.3d 762, 763, 18 N.Y.S.3d 637 ). "Those efforts must include counseling, making suitable arrangements for [parental access], providing assistance to the parents to resolve the problems preventing the child's discharge, and advising the parents of the child's progress and development" ( Matter of Christopher John B. [Christopher B.], 87 A.D.3d at 1134, 930 N.Y.S.2d 224 ). "Once the petitioner establishes that it made diligent efforts to strengthen the parental relationship, it bears the burden of proving that, during the relevant period of time, the parent failed to maintain contact with the child or plan for the child's future, although physically and financially able to do so" ( Matter of Samatha B. [Cynthia J.], 159 A.D.3d at 1008, 73 N.Y.S.3d 227 ). "The latter criterion contemplates that the parent shall take such steps as are necessary to provide a home that is adequate and stable within a reasonable period of time" ( Matter of Christopher John B. [Christopher B.], 87 A.D.3d at 1134, 930 N.Y.S.2d 224, citing Social Services Law § 384–b[7][c] ). "The credibility findings of the Family Court should be accorded great deference, as it [has] direct access to the parties and [is] in the best position to evaluate their testimony, character, and sincerity" ( Matter of Derrick D.A. [Shavonna L.L.D.], 134 A.D.3d 928, 929, 22 N.Y.S.3d 472 ).
Contrary to the Family Court's determination, the petitioner demonstrated, by clear and convincing evidence, that it made diligent efforts to encourage and strengthen the parental relationship between the mother and the child. These efforts included devising a service plan for the mother, facilitating parental access with the child, providing the mother with referrals for mental health services, monitoring her progress, changing the parental access schedule when it interfered with the mother's work, meeting with the mother to review the service plan, and explaining the importance of complying with the plan (see Matter of Samatha B. [Cynthia J.], 159 A.D.3d at 1008, 73 N.Y.S.3d 227 ; Matter of Endoran E.H. [Elliot R.H.], 132 A.D.3d at 763, 18 N.Y.S.3d 637 ; cf. Matter of Christopher John B. [Christopher B.], 87 A.D.3d at 1134, 930 N.Y.S.2d 224 ). That the petitioner did not spontaneously provide MetroCards or alternative means of transportation to the mother in order to facilitate parental access, without her having requested such services, does not diminish the petitioner's otherwise persistent efforts to encourage and strengthen the mother's relationship with the child.
Nevertheless, the Family Court properly dismissed that branch of the petition which was to terminate the mother's parental rights on the ground of permanent neglect. The record supports the court's determination that the petitioner did not establish, by clear and convincing evidence, that the mother failed substantially and consistently to maintain contact with the child or to plan for the child's future during the relevant period of time. Although the mother was at times inconsistent in exercising parental access and participating in individual therapy, she substantially complied with the terms set forth by the petitioner by completing domestic violence and anger management programing, obtaining adequate housing and employment, and maintaining contact with the caseworker in an effort to comply with parental access and therapy when these obligations presented scheduling conflicts (see Matter of Samatha B. [Cynthia J.], 159 A.D.3d at 1008, 73 N.Y.S.3d 227 ; Matter of Endoran E.H. [Elliot R.H.], 132 A.D.3d at 763, 18 N.Y.S.3d 637 ; Matter of Christopher John B. [Christopher B.], 87 A.D.3d at 1134, 930 N.Y.S.2d 224 ).
LASALLE, P.J., CHAMBERS, BARROS and IANNACCI, JJ., concur.