Opinion
96 CAF 20-01214
03-18-2022
In the MATTER OF NATHAN N., Miles N., Thomas N., Isaac N. and Naomi N. Livingston County Department of Social Services, Petitioner-Respondent; v. Christopher R.N. and Melissa J.N., Respondents-Appellants.
HAYDEN DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR RESPONDENT-APPELLANT CHRISTOPHER R.N. PETER J. DIGIORGIO, JR., UTICA, FOR RESPONDENT-APPELLANT MELISSA J.N. MEGAN E. O'LEARY, MOUNT MORRIS, FOR PETITIONER-RESPONDENT. GARY MULDOON, ROCHESTER, ATTORNEY FOR THE CHILDREN.
HAYDEN DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR RESPONDENT-APPELLANT CHRISTOPHER R.N.
PETER J. DIGIORGIO, JR., UTICA, FOR RESPONDENT-APPELLANT MELISSA J.N.
MEGAN E. O'LEARY, MOUNT MORRIS, FOR PETITIONER-RESPONDENT.
GARY MULDOON, ROCHESTER, ATTORNEY FOR THE CHILDREN.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Social Services Law § 384-b, respondent father and respondent mother appeal from an order that, inter alia, terminated their parental rights with respect to the subject children on the ground of permanent neglect and transferred guardianship and custody of the children to petitioner. We affirm.
We reject the contention of the father that petitioner failed to establish that it exercised diligent efforts, as required by Social Services Law § 384-b (7) (a), to encourage and strengthen the parent-child relationship. "Diligent efforts include reasonable attempts at providing counseling, scheduling regular visitation with the child[ren], providing services to the parents to overcome problems that prevent the discharge of the child[ren] into their care, and informing the parents of their child[ren's] progress" ( Matter of Caidence M. [Francis W.M.] , 162 A.D.3d 1539, 1539, 78 N.Y.S.3d 558 [4th Dept. 2018], lv denied 32 N.Y.3d 905, 2018 WL 4924781 [2018] [internal quotation marks omitted]; see Matter of Hannah W. [William W.] , 182 A.D.3d 1032, 1033, 120 N.Y.S.3d 890 [4th Dept. 2020] ). Here, petitioner established by clear and convincing evidence (see § 384-b [3] [g] [i] ) that it fulfilled its duty to exercise diligent efforts to encourage and strengthen respondents’ relationships with the children (see Matter of Nicholas B. [Eleanor J.] , 83 A.D.3d 1596, 1597, 921 N.Y.S.2d 762 [4th Dept. 2011], lv denied 17 N.Y.3d 705, 2011 WL 2566514 [2011] ) by providing appropriate services to respondents, including parenting education, mental health counseling, budgeting and communication training, and scheduling regular visitation with the children (see Hannah W. , 182 A.D.3d at 1033, 120 N.Y.S.3d 890 ).
We further conclude that, contrary to respondents’ contentions, petitioner established that, despite those diligent efforts, respondents permanently neglected the children because they "failed to plan appropriately for the child[ren]’s future" ( Matter of Jerikkoh W. [Rebecca W.] , 134 A.D.3d 1550, 1551, 23 N.Y.S.3d 784 [4th Dept. 2015], lv denied 27 N.Y.3d 903, 2016 WL 1313366 [2016] ). "It is well settled that, to plan substantially for a child's future, ‘the parent must take meaningful steps to correct the conditions that led to the child's removal’ " ( id. ; see Matter of Nathaniel T. , 67 N.Y.2d 838, 840, 501 N.Y.S.2d 647, 492 N.E.2d 775 [1986] ). Here, respondents failed to take such meaningful steps inasmuch as they failed to successfully complete the programs and services that were made available to them and, despite petitioner's efforts, respondents did not progress to a point where unsupervised visits could occur (see Matter of Jase M. [Holly N.] , 190 A.D.3d 1238, 1241, 141 N.Y.S.3d 153 [3d Dept. 2021], lv denied 37 N.Y.3d 901, 2021 WL 2152676, 2021 WL 2152745 [2021]; Matter of Soraya S. [Kathryne T.] , 158 A.D.3d 1305, 1306, 70 N.Y.S.3d 737 [4th Dept. 2018], lv denied 31 N.Y.3d 908, 2018 WL 2728503 [2018] ).
Contrary to respondents’ contentions, Family Court (Van Allen, J.) did not abuse its discretion in refusing to issue a suspended judgment. "A suspended judgment is a brief grace period designed to prepare the parent to be reunited with the children" ( Matter of Aiden T. [Melissa S.] , 164 A.D.3d 1663, 1663, 84 N.Y.S.3d 658 [4th Dept. 2018], lv denied 32 N.Y.3d 917, 2019 WL 1285104 [2019] [internal quotation marks omitted]; see Family Ct Act § 633 ; Matter of Michael B. , 80 N.Y.2d 299, 310-311, 590 N.Y.S.2d 60, 604 N.E.2d 122 [1992] ) and "may be warranted where the parent has made sufficient progress in addressing the issues that led to the child[ren]’s removal from custody" ( Matter of Brandon I.J. [Daisy D.] , 198 A.D.3d 1310, 1311, 155 N.Y.S.3d 652 [4th Dept. 2021] ). Here, the evidence at the dispositional hearing established that the children had been removed from respondents’ care for over two years and, during that time, as noted above, respondents failed to make substantial progress in addressing the issues that led to the removal of the children and still had only supervised visits with the children. We therefore conclude that the court properly determined that a suspended judgment was unwarranted (see id. ).
We reject respondents’ contentions that, prior to the fact-finding hearing, Family Court (Cohen, J.) abused its discretion when it denied their requests for an adjournment. "The grant or denial of a motion for an adjournment for any purpose is a matter resting within the sound discretion of the trial court" ( Matter of Dixon v. Crow , 192 A.D.3d 1467, 1467, 144 N.Y.S.3d 766 [4th Dept. 2021], lv denied 37 N.Y.3d 904, 2021 WL 3925959 [2021] [internal quotation marks omitted]), and we conclude that the court did not abuse its discretion. We note that neither the mother nor the father demonstrated any prejudice that they sustained as a result of the denial of their requests for an adjournment (see generally id. at 1468, 144 N.Y.S.3d 766 ). Although respondents contend that they needed more time to review voluminous discovery materials, the record establishes that the court told respondents that it would permit them to recall any witness for additional cross-examination upon further review of the provided discovery, and it is clear from the record that counsel used the provided discovery during the extensive and thorough cross-examination of petitioner's witnesses.
Similarly, we reject respondents’ contention that the court (Cohen, J.) abused its discretion in refusing to recuse itself. "Absent a legal disqualification, ... a [j]udge is generally the sole arbiter of recusal ..., and it is well established that a court's recusal decision will not be overturned absent an abuse of discretion" ( Matter of Allison v. Seeley-Sick , 199 A.D.3d 1490, 1491, 158 N.Y.S.3d 480 [4th Dept. 2021] [internal quotation marks omitted]; see People v. Moreno , 70 N.Y.2d 403, 405-406, 521 N.Y.S.2d 663, 516 N.E.2d 200 [1987] ; People v. Warren , 100 A.D.3d 1399, 1400, 954 N.Y.S.2d 289 [4th Dept. 2012] ). Here, nothing in the record establishes that "any bias on the court's part unjustly affected the result to the detriment of [respondents] or that the court [had] a predetermined outcome of the case in mind during the hearing" ( Matter of Cameron ZZ. v. Ashton B. , 183 A.D.3d 1076, 1081, 123 N.Y.S.3d 737 [3d Dept. 2020], lv denied 35 N.Y.3d 913, 2020 WL 5415202 [2020] [internal quotation marks omitted]; see Allison , 199 A.D.3d at 1491-1492, 158 N.Y.S.3d 480 ). We perceive no abuse of discretion by the court in denying respondents’ recusal motion (see Tripi v. Alabiso , 189 A.D.3d 2060, 2061, 134 N.Y.S.3d 843 [4th Dept. 2020] ; Matter of Brooks v. Greene , 153 A.D.3d 1621, 1622, 61 N.Y.S.3d 403 [4th Dept. 2017] ).