Opinion
523607
11-21-2018
In the MATTER OF DERICK L., Alleged to be a Permanently Neglected Child. Schenectady County Department of Social Services, Respondent; v. Michael L., Appellant. (And Nine Other Related Proceedings.)
Sandra M. Colatosti, Albany, for appellant. Christopher H. Gardner, County Attorney, Schenectady (Michael R. Godlewski of counsel), for respondent. Alexandra G. Verrigni, Rexford, attorney for the child.
Sandra M. Colatosti, Albany, for appellant.
Christopher H. Gardner, County Attorney, Schenectady (Michael R. Godlewski of counsel), for respondent.
Alexandra G. Verrigni, Rexford, attorney for the child.
Before: Egan Jr., J.P., Clark, Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Aarons, J.Appeal from an order of the Family Court of Schenectady County (Powers, J.), entered August 3, 2016, which, among other things, granted petitioner's application, in a proceeding pursuant to Social Services Law § 384–b, to adjudicate Derick L. to be permanently neglected.
Respondent is the father of three children (born in 2005, 2007 and 2009). In 2008, the two older children were placed in foster care. The children were gradually returned to their parents' care but, in 2010, the three children were removed due to a stream of hotline reports, one of which concerned the middle child climbing out of a window and onto the building's roof. In 2012, petitioner commenced these proceedings against respondent. Following lengthy hearings, Family Court, in an August 2016 order, found, as relevant here, that respondent neglected and derivatively neglected the two younger children and that he permanently neglected and abandoned the older child. As a consequence of the abandonment finding, Family Court terminated respondent's parental rights with respect to the older child and no dispositional hearing was held regarding the permanent neglect finding. Respondent now appeals.
Petitioner also commenced proceedings against the children's mother, which concerned the subject children, as well as the mother's two other children.
As an initial matter, we note that no appeal as of right exists from a fact-finding order in a permanent neglect proceeding (see Matter of Zyrrius Q. [Nicole S.], 161 A.D.3d 1233, 1233 n. 2, 75 N.Y.S.3d 378 [2018], lv denied 32 N.Y.3d 903, 84 N.Y.S.3d 856, 109 N.E.3d 1156 [2018] ; Matter of Duane FF. [Harley GG.], 154 A.D.3d 1086, 1087 n. 3, 62 N.Y.S.3d 566 [2017], lv denied 30 N.Y.3d 908, 2018 WL 326620 [2018] ). We nevertheless treat respondent's notice of appeal from the August 2016 order as an application for leave to appeal and grant such application (see Matter of Lamar LL. [Loreal MM.], 86 A.D.3d 680, 680 n. 1, 927 N.Y.S.2d 185 [2011], lv denied 17 N.Y.3d 712, 932 N.Y.S.2d 426, 956 N.E.2d 1271 [2011] ). That said, to the extent that the father challenges the permanent neglect finding with respect to the older child, the appeal is not moot because such finding creates a permanent and significant stigma that may affect respondent's status in future proceedings (see Matter of Matthew C., 227 A.D.2d 679, 680, 641 N.Y.S.2d 753 [1996] ). For this reason, even though petitioner and the attorney for the children have advised this Court that respondent's parental rights have been terminated with respect to the two younger children, we also reject their contention that respondent's appeal from that part of the order finding that respondent neglected the two younger children is moot (see Matter of Mahogany Z. [Wayne O.], 72 A.D.3d 1171, 1172, 897 N.Y.S.2d 313 [2010], lv denied 14 N.Y.3d 714, 905 N.Y.S.2d 128, 931 N.E.2d 97 [2010] ).
As to Family Court's determination of permanent neglect, petitioner demonstrated by clear and convincing evidence that it made diligent efforts to encourage and strengthen respondent's relationship with the older child (see Matter of Zyrrius Q. [Nicole S.], 161 A.D.3d at 1233–1234, 75 N.Y.S.3d 378 ; Matter of Joannis P. [Joseph Q.], 110 A.D.3d 1188, 1190, 974 N.Y.S.2d 139 [2013], lv denied 22 N.Y.3d 857, 980 N.Y.S.2d 68, 3 N.E.3d 134 [2013] ; Matter of Eric G., 59 A.D.3d 785, 786, 872 N.Y.S.2d 739 [2009] ). The evidence from the hearing indicates that a plethora of classes and resources were offered to respondent, including those to help with parenting and keeping a clean house, supervised visitations were arranged when the older child was in foster care and mental health counseling was provided to respondent and the older child. Additionally, caseworkers were assigned to help with the reunification process and service plans were created to assist with such process. Accordingly, Family Court's finding that it "would be hard-pressed to conclude that [petitioner's] efforts have been less than plenteous" is supported by the record (see Matter of Asianna NN. [Kansinya OO.], 119 A.D.3d 1243, 1245, 990 N.Y.S.2d 350 [2014], lv denied 24 N.Y.3d 907, 997 N.Y.S.2d 117, 21 N.E.3d 569 [2014] ).
The record also supports Family Court's determination that, despite petitioner's diligent efforts, respondent failed to meaningfully plan for the older child's future (see Matter of Jessica U. [Stephanie U.], 152 A.D.3d 1001, 1004–1005, 59 N.Y.S.3d 195 [2017] ; Matter of Samuel DD. [Margaret DD.], 123 A.D.3d 1159, 1162, 998 N.Y.S.2d 239 [2014], lv denied 24 N.Y.3d 918, 4 N.Y.S.3d 604, 28 N.E.3d 40 [2015] ; Matter of Nicole K. [Melissa K.], 85 A.D.3d 1231, 1232–1233, 924 N.Y.S.2d 624 [2011] ). In this regard, Family Court found, and the record confirms, that respondent missed parenting classes and counseling sessions and that he failed to show significant improvement notwithstanding the offered services. Respondent was also resistant to implementing parenting tips suggested by the caseworkers to help with managing the older child's behavior problems. Multiple witnesses testified that respondent's residence was in a deplorable and unsanitary condition – for example, animal excrement and trash were on the floor, a foul odor emanated from the residence, clutter blocked the hallways and unwashed dishes were found on the floor, tables, sink and counter. One caseworker testified that respondent did not see anything wrong with the housing conditions. Accordingly, we are satisfied that clear and convincing evidence supports Family Court's determination of permanent neglect (see Matter of Destiny EE. [Karen FF.], 123 A.D.3d 1165, 1167–1168, 997 N.Y.S.2d 831 [2014] ; Matter of Havyn PP. [Morianna RR.], 94 A.D.3d 1359, 1361–1362, 943 N.Y.S.2d 243 [2012] ; Matter of Ronnie P. [Danielle Q.], 77 A.D.3d 1094, 1097, 909 N.Y.S.2d 775 [2010] ; Matter of Douglas H. [Catherine H.], 1 A.D.3d 824, 825, 767 N.Y.S.2d 173 [2003], lv denied 2 N.Y.3d 701, 778 N.Y.S.2d 459, 810 N.E.2d 912 [2004] ).
In light of this determination, respondent's claim that Family Court erred in concluding that he failed to maintain contact with the older child is academic given that "[f]ailure to plan and failure to maintain contact are alternative bases for a finding of permanent neglect" (Matter of Kayden E. [Luis E.], 111 A.D.3d 1094, 1097, 975 N.Y.S.2d 789 [2013] [citation omitted], lv denied 22 N.Y.3d 862, 983 N.Y.S.2d 494, 6 N.E.3d 613 [2014] ; see Matter of George U., 195 A.D.2d 718, 720, 600 N.Y.S.2d 325 [1993] ).
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As to Family Court's determination that respondent abandoned the older child, the record evidence establishes that respondent, although able to do so and not prevented or discouraged from doing so by petitioner, failed to visit or communicate with the older child or petitioner during the six-month period prior to the filing of the abandonment petition (see Matter of Dimitris J. [Sarah J.], 141 A.D.3d 768, 769, 34 N.Y.S.3d 731 [2016] ; Matter of Dustin JJ. [Clyde KK.], 114 A.D.3d 1050, 1051, 981 N.Y.S.2d 177 [2014], lv denied 23 N.Y.3d 901, 2014 WL 1705650 [2014] ; Matter of Carter A. [Jason A.], 111 A.D.3d 1181, 1182–1183, 977 N.Y.S.2d 415 [2013], lv denied 22 N.Y.3d 862, 983 N.Y.S.2d 493, 6 N.E.3d 612 [2014] ). A casework testified that respondent was scheduled to have visitations with the older child twice a month for a three-hour period. Respondent, however, visited with the older child only once and, in that one instance, he left after 45 minutes unbeknownst to the older child. Respondent stated that his medical condition limited his ability to travel. Yet, respondent admitted that, during the applicable six-month period, he was able to go to his court appearances, as well as to an amusement park on two separate occasions. Furthermore, even though not required to do so, petitioner offered respondent transportation services to enable visitations with the older child (see Matter of Devin XX., 20 A.D.3d 639, 640, 797 N.Y.S.2d 661 [2005] ). Although respondent also attended one of the older child's medical appointments, such minimal contact does not suffice to constitute a visitation with the older child (see Matter of Jacob WW., 56 A.D.3d 995, 997, 868 N.Y.S.2d 348 [2008] ). In view of the foregoing, we find no basis to disturb Family Court's determination to terminate respondent's parental rights with respect to the older child based on abandonment (see Matter of Jazmyne OO. [Maurice OO.], 111 A.D.3d 1085, 1087–1088, 975 N.Y.S.2d 786 [2013] ; Matter of Jamal B. [Johnny B.], 95 A.D.3d 1614, 1616, 945 N.Y.S.2d 472 [2012], lv denied 19 N.Y.3d 812, 2012 WL 4017424 [2012] ).
As to the determination of neglect with respect to the two younger children, Family Court found, among other things, that respondent failed to provide a suitable home environment for the two younger children and, in our view, the record supports this finding. In addition, the evidence from the hearing established that respondent stopped taking his mental health medication and, after doing so, he acted in an abusive manner to the children's mother while in the children's presence. As such, petitioner demonstrated by a preponderance of the evidence that respondent neglected the two younger children (see Matter of Ahriiyah VV. [Rebecca VV.], 160 A.D.3d 1140, 1142, 74 N.Y.S.3d 416 [2018], lv denied 31 N.Y.3d 911, 2018 WL 3118198 [2018] ; Matter of Zackery D. [Tosha E.], 129 A.D.3d 1121, 1122–1123, 10 N.Y.S.3d 699 [2015] ; Matter of Alexis AA. [John AA.], 91 A.D.3d 1073, 1073–1074, 937 N.Y.S.2d 381 [2012], lv denied 18 N.Y.3d 809, 2012 WL 1033616 [2012] ). Based on the record evidence, we also reject respondent's assertion that Family Court's finding of derivative neglect was in error (see Matter of Alexander Z. [Melissa Z.], 129 A.D.3d 1160, 1164, 11 N.Y.S.3d 288 [2015], lv denied 25 N.Y.3d 914, 2015 WL 5037955 [2015] ; Matter of Shannen AA. [Melissa BB.], 80 A.D.3d 906, 909, 914 N.Y.S.2d 768 [2011], lv denied 16 N.Y.3d 709, 921 N.Y.S.2d 189, 946 N.E.2d 177 [2011] ). Respondent's remaining arguments have been examined and are without merit.
Egan Jr., J.P., Clark, Mulvey and Pritzker, JJ., concur.
ORDERED that the order is affirmed, without costs.