Opinion
2012-12-5
In the Matter of CARMINE A.B. (Anonymous). Suffolk County Department of Social Services, respondent, Nicole B. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Angel G.B. (Anonymous). Suffolk County Department of Social Services, respondent, Nicole B. (Anonymous), appellant. (Proceeding No. 2).
Del Atwell, East Hampton, N.Y., for appellant. Dennis M. Cohen, County Attorney, Central Islip, N.Y. (James G. Bernet of counsel), for respondent.
Del Atwell, East Hampton, N.Y., for appellant. Dennis M. Cohen, County Attorney, Central Islip, N.Y. (James G. Bernet of counsel), for respondent.
Susan Selanikio Linder, West Islip, N.Y., attorney for the children.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, and SHERI S. ROMAN, JJ.
In two related proceedings pursuant to Social Services Law § 384–b to terminate parental rights on the ground of permanent neglect, the mother appeals from an order of fact-finding and disposition of the Family Court, Suffolk County (Whelan, J.), dated August 3, 2011, which, after a fact-finding hearing, found that she permanently neglected the subject children and, after a dispositional hearing at which she failed to appear, terminated her parental rights and transferred guardianship and custody of the subject children to the Suffolk County Department of Social Services for the purpose of adoption.
ORDERED that the appeal from so much of the order of fact-finding and disposition as terminated the mother's parental rights and freed the children for adoption, upon the mother's default in appearing at the dispositional hearing, is dismissed, without costs or disbursements; and it is further,
ORDERED that the order of fact-finding and disposition is affirmed insofar as reviewed, without costs or disbursements.
Since the mother did not appear at the dispositional hearing, those portions of the order which terminated the mother's parental rights and freed the subject children for adoption were entered upon her default and are not appealable ( see Matter of Amber Megan D., 54 A.D.3d 338, 862 N.Y.S.2d 568;Matter of Joseph Kenneth B., 47 A.D.3d 809, 850 N.Y.S.2d 543;Matter of Jessica Dee D., 6 A.D.3d 435, 774 N.Y.S.2d 384). However, because the mother was present by telephone at the fact-finding hearing, she may appeal from those portions of the order which found that she permanently neglected the subject children ( see Matter of Amber Megan D., 54 A.D.3d 338, 862 N.Y.S.2d 568;Matter of Vanessa M., 263 A.D.2d 542, 693 N.Y.S.2d 221).
To establish permanent neglect, there must be clear and convincing proof that, for a period of one year following the child's placement with an authorized agency, the parent failed to substantially and continuously maintain contact with the child or, alternatively, failed to plan for the future of the child, although physically and financially able to do so, notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship ( seeSocial Services Law § 384–b[7]; Matter of Star Leslie W., 63 N.Y.2d 136, 142–143, 481 N.Y.S.2d 26, 470 N.E.2d 824;Matter of Walter D.H. [ Zaire L.], 91 A.D.3d 950, 951, 938 N.Y.S.2d 567). “At a minimum, planning for the future of the child requires the parent to take steps to correct the conditions that led to the child's removal from the home” (Matter of David O.C., 57 A.D.3d 775, 775–776, 870 N.Y.S.2d 389;see Matter of Nathaniel T., 67 N.Y.2d 838, 840, 501 N.Y.S.2d 647, 492 N.E.2d 775;Matter of Leon RR, 48 N.Y.2d 117, 125, 421 N.Y.S.2d 863, 397 N.E.2d 374).
Here, the Suffolk County Department of Social Services established that it made diligent efforts to assist the mother in securing substance abuse counseling and planning for her children's future by providing multiple referrals to substance abuse and mental health clinics and consistently attempting to maintain phone and letter correspondence with her both before and after her move to Arizona ( see Matter of Liam Francis P., 26 A.D.3d 385, 809 N.Y.S.2d 180). Nonetheless, the mother failed to complete any substance abuse or mental health programs and failed to comply with a court-ordered hair follicle drug test. Accordingly, the Family Court properly found that the mother's failure to address her substance abuse problem supported the finding of permanent neglect ( see Matter of David O.C., 57 A.D.3d 775, 870 N.Y.S.2d 389;Matter of Jonathan P., 283 A.D.2d 675, 724 N.Y.S.2d 213).