Opinion
February 18, 1999
Appeal from the Family Court of Tompkins County (Barrett, J.).
This appeal involves respondent's fifth child, Anthony OO., born in early 1996. Respondent's parental rights as to her other four children were previously, terminated (see, Matter of Michelle S., 234 A.D.2d 800; Matter of Grace Q., 208 A.D.2d 976). Pursuant to a Family Court order, petitioner took custody of Anthony two days after his birth. In May 1996, he was adjudicated to be a neglected child under Family Court Act § 1012 Fam. Ct. Act (f) (i) (B) and placed in petitioner's custody for 12 months. Respondent's service plan included regular supervised visitation with Anthony, regular meetings with caseworkers and psychological, drug and alcohol evaluations and treatment, if needed. In April 1997, petitioner initiated this permanent neglect proceeding seeking termination of respondent's parental rights, alleging that respondent failed to comply with her service plan, failed to maintain regular contact with Anthony or plan for his future, and that she lacked the requisite mental competence to care for him. Following fact-finding and dispositional hearings, Family Court entered a finding of permanent neglect and terminated respondent's parental rights, prompting this appeal.
We affirm. Contrary to respondent's arguments, petitioner proved by clear and convincing evidence that it exercised diligent, albeit futile, efforts to promote the parental relationship between respondent and Anthony, and that she consistently failed to take any measures to plan for his future. The evidence adduced at the fact-finding hearing established the following. Respondent missed 22 of the 35 visits which petitioner arranged between respondent and Anthony, and for which transportation was either provided or offered. Beyond explaining that she was in jail for two months during this period, respondent offered no comprehensible explanation for missing the scheduled visits or for failing to notify petitioner that she would not keep scheduled appointments. Respondent also refused to submit to a drug or alcohol evaluation, denying the necessity thereof despite her documented history of alcoholism (see, Matter of Grace Q., supra). Although she submitted to a psychological evaluation, she refused to follow its treatment recommendations. Further, she attended only one of three scheduled formal service plan reviews, remaining only approximately two minutes before departing in anger, denying her need for any services. She consistently refused to discuss any aspect of the service plan with petitioner beyond denying the existence of any mental illness, alcohol or substance abuse problem. Respondent's hearing testimony, best characterized as rambling and sometimes bizarre, offered no hint of any realistic plan or present capacity to care for the child. In short, Family Court's finding as to permanent neglect has ample evidentiary support.
Respondent next challenges the sufficiency of the dispositional hearing held approximately four weeks after the fact-finding hearing. At the dispositional hearing, petitioner called no witnesses, and instead advised Family Court that respondent's mental health and alcoholism status had remained essentially unchanged since Anthony's original placement and, indeed, throughout the history of respondent's involvement with petitioner. Petitioner also alluded to the court's familiarity with respondent's situation by virtue of its prior termination of her parental rights as to her other children, and requested the same disposition as to Anthony. The Law Guardian concurred with petitioner's request. Respondent did not call any witnesses or offer any evidence. Although opposing termination of her rights, she did not object to the form of the proceeding, including petitioner's failure to call witnesses.
It is, of course, well settled that unless all parties consent to dispense with such, a dispositional hearing is required to determine the appropriate order of disposition to be entered upon an adjudication of permanent neglect, and at the dispositional hearing the sole criterion is the best interest of the child (see, Family Ct. Act § 623 Fam. Ct. Act, 625 Fam. Ct. Act [a]; § 631 Fam. Ct. Act; see also, Matter of Kelly G., 244 A.D.2d 709; Matter of Shavonda GG., 232 A.D.2d 780; Matter of Verquan B., 225 A.D.2d 1062; Matter of Rosa B., 161 A.D.2d 1152). Because failure to hold such a hearing may compromise Family Court's ability to make an informed judgment as to the need for alternative or additional dispositional remedies, remittal will be ordered even where the record of the fact-finding proceeding justifies the ordered disposition (see, Matter of Kelly G., supra). We do not construe these rules, however, as requiring such rigid application as would mandate a totally duplicative reprise of testimony presented at a prior fact-finding hearing where, as here, it is clear that no new evidence is available and where respondent is afforded a full opportunity to present witnesses or other proof relevant to disposition. Under the circumstances presented here, the dispositional proceeding was adequate and supports the court's determination that termination of respondent's parental rights was in the best interest of the child.
Finally, we reject respondent's generalized and unsubstantiated claim that she was denied effective assistance of counsel. While complaining that her counsel presented no evidence on her behalf, she fails to identify any such evidence or witnesses that could or should have been called. Nor did counsel's failure to argue for a disposition of suspended judgment constitute ineffective assistance, particularly in light of the fact that respondent was previously found in violation of the terms of a suspended judgment ordered by the same Judge in an earlier termination proceeding based upon her failure to satisfactorily complete an alcohol rehabilitation program and plan for the return of her children (Matter of Grace Q., supra).
Crew III, Yesawich Jr., Peters and Graffeo, JJ., concur.
Ordered that the order is affirmed, without costs.