Opinion
765 CAF 16–02310
06-29-2018
In the MATTER OF MIRABELLA H. Cayuga County Department of Social Services, Petitioner–Respondent; v. Angela I., Respondent–Appellant.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF COUNSEL), FOR RESPONDENT–APPELLANT. ADAM H. VAN BUSKIRK, AUBURN, FOR PETITIONER–RESPONDENT. JILL L. TERRY, WEEDSPORT, ATTORNEY FOR THE CHILD.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF COUNSEL), FOR RESPONDENT–APPELLANT.
ADAM H. VAN BUSKIRK, AUBURN, FOR PETITIONER–RESPONDENT.
JILL L. TERRY, WEEDSPORT, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., CARNI, LINDLEY, DEJOSEPH, 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 mother appeals from an order that, inter alia, terminated her parental rights with respect to the subject child on the ground of permanent neglect. We affirm.
We reject the mother's contention that reversal is required because petitioner failed to properly notify the child's maternal uncle of the instant proceeding. Even assuming, arguendo, that petitioner failed to fulfill its statutory duty to notify the uncle of the pendency of the proceeding and of the opportunity for becoming a foster parent or for seeking custody of the child (see Social Services Law § 384–a [1–a ]; see generally Family Ct Act § 1017[1][a] ), we conclude that the record establishes that the uncle was aware of the fact that the child was in foster care. Indeed, the uncle filed a custody petition with respect to the child, but that proceeding was dismissed as a result of the uncle's failure to appear and the uncle did not appeal from the order dismissing his petition. Thus, it cannot be said that the uncle was prejudiced by any failure to notify him of this proceeding (see Matter of Elizabeth YY. v. Albany County Dept. of Social Servs., 229 A.D.2d 618, 620–621, 644 N.Y.S.2d 856 [3d Dept. 1996] ).
We also reject the mother's contention that Family Court erred in determining that she permanently neglected the child. Although the mother participated in some of the services offered by petitioner, petitioner established that the mother's progress was insufficient to warrant the return of the child to her care inasmuch as she failed to " ‘address or gain insight into the problems that led to the removal of the child[ ] and continued to prevent the child['s] safe return’ " ( Matter of Burke H. [Richard H.], 134 A.D.3d 1499, 1501, 23 N.Y.S.3d 776 [4th Dept. 2015] ; see Matter of Tiara B. [Torrence B.], 70 A.D.3d 1307, 1307, 895 N.Y.S.2d 622 [4th Dept. 2010], lv denied 14 N.Y.3d 709, 2010 WL 1754796 [2010] ). Contrary to the mother's further contention, the court did not abuse its discretion in terminating the mother's parental rights rather than granting a suspended judgment (see Matter of Jose R., 32 A.D.3d 1284, 1285, 821 N.Y.S.2d 719 [4th Dept. 2006], lv denied 7 N.Y.3d 718, 827 N.Y.S.2d 688, 860 N.E.2d 990 [2006] ). The evidence in the record supports the court's determination that termination of the mother's parental rights is in the best interests of the child, and that the mother's progress in addressing the issues that led to the child's removal from her custody was " ‘not sufficient to warrant any further prolongation of the child's unsettled familial status’ " ( Matter of Alexander M. [Michael A.M.], 106 A.D.3d 1524, 1525, 964 N.Y.S.2d 445 [4th Dept. 2013] ; see Matter of Joanna P. [Patricia M.], 101 A.D.3d 1751, 1752, 957 N.Y.S.2d 552 [4th Dept. 2012], lv denied 20 N.Y.3d 863, 2013 WL 1235506 [2013] ).