Opinion
No. B–09963–10.
2011-06-21
In the Matters of PAZARIA M., Winter M., Latonia W., Neighya W., Cecilia A.M. Children under the Age of Eighteen Years Alleged to be Permanently Neglected by Antoinette M., Respondent.
Patricia A. Woehrlen, Esq., for Petitioner. Kevin Khuns, Esq., for Respondent.
Patricia A. Woehrlen, Esq., for Petitioner. Kevin Khuns, Esq., for Respondent.
Kathy Perrault, Esq., for the Children.
DANDREA L. RUHLMANN, J.
Monroe County Department of Human Services (Petitioner) filed petitions on August 11, 2010 seeking termination of Respondent Antoinette M.'s parental rights alleging that she permanently neglected her daughters Pazaria (dob:—/—/—); Winter (dob:—/—/—); Latonia (dob:—/—/—); Neighya (—/—/—); and Cecilia (dob:—/—/—). Petitioner also moves for a neglect finding against Respondent regarding Cecilia alleging a violation of the Adjournment in Contemplation of Dismissal Order. The Court finds by clear and convincing evidence that Respondent permanently neglected all five girls. The Court also finds a violation of the underlying Adjournment in Contemplation of Dismissal concerning Cecilia and enters a finding of neglect. On consent of the parties the Court also held a combined dispositional and post-termination hearing pursuant to Matter of Kahlil S. (60 AD3d 1450 [4th Dept 2009] ). Respondent's parental rights to her daughters are hereby terminated. Pazaria and Winter's guardianship and custody are committed to Petitioner for the purpose of adoption (Family Court Act § § 631[c]; 634). Latonia, Neighya and Cecilia shall remain placed with Petitioner pending resolution of the termination action against their biological father Anthony W. who also filed for their custody and visitation. The Court orders post-termination contact between all five girls and Respondent at a minimum of twice annually and such further contact as can be mutually arranged by foster mother Claudette L. and Respondent.
Permanently neglected children are children “who [are] in the care of an authorized agency and whose parent or custodian has failed for a period of more than one year ... substantially and continuously or repeatedly to maintain contact with or plan for the future of the child[ren] ... notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child [ren]” (Social Services Law § 384–b [7][a] ). To prove permanent neglect, Petitioner must establish by clear and convincing evidence that (1) it made diligent efforts to encourage or strengthen Respondent's relationship with her child but despite such efforts Respondent substantially and continuously or repeatedly (2) failed to plan for the future of her children or (3) failed to maintain contact with her children for a period of one year ( see Matter of Star Leslie W., 63 N.Y.2d 136, 142–143 [1984];Social Services Law § 384–b [7][a] ).
The Court heard testimony from Petitioner's witnesses: Caseworkers Ann Marie S. and Janette M. and foster mother Claudette L. and finds them believable and credible. The Court also received certain documentary evidence including certified copies of orders. Respondent failed to testify at the fact-finding hearing but did testify on her own behalf at the dispositional hearing.
Petitioner provided “services and other assistance aimed at ameliorating or resolving the problems preventing the children's return to [Respondent]'s care” (Matter of Dakota S., 43 AD3d 1414 [4th Dept 2007] quoting Matter of Kayte M., 201 A.D.2d 835, 835 [3d Dept 1994], lv denied83 N.Y.2d 757 [1994] ). The New York State Court of Appeals has defined “diligent efforts” to mean reasonable attempts by an authorized agency to assist, develop and encourage a meaningful relationship between the parent and children, including but not limited to (1) consultation and cooperation with the parents in developing a plan for appropriate services to the children and family; (2) making suitable arrangements for the parent to visit the children; (3) provision of services and other assistance to the parent so that problems preventing the discharge of the children from care may be resolved or ameliorated; and (4) informing the parents at appropriate intervals of the children's progress, development and health (Matter of Sheila G., 61 N.Y.2d 368, 384 [1984] ).
Scheduling visits, providing transportation and discussing the consequences of failure to follow through with visits constitute some evidence of “diligent efforts” (Matter of Roderick W., 96 A.D.2d 746, 747 [4th Dept 1983], lv denied61 N.Y.2d 602 [1983];Matter of Chuck PP, 158 A.D.2d 859 [3d Dept 1990], lv denied75 N.Y.2d 710 [1990] ). Caseworkers M. and S. testified that Respondent had a dispositional plan that they both reviewed with Respondent. Both testified that they attempted scheduled home visits with Respondent but she was not there and left messages for Respondent but she did not respond. Caseworker S. testified that she gave Respondent a three-day bus pass every time she saw her.
Despite the caseworkers' efforts, Respondent did not visit consistently with her daughters. On July 16, 2008, although offered weekly visits, Respondent admitted that she was not visiting with her daughters because “she was busy going back to school” and she wanted to “go back to Florida.” Caseworker S. testified that between March 10, 2009 until January 4, 2010, Respondent had no contact with Petitioner. Respondent did not provide any contact information and Petitioner learned that Respondent relocated to Florida and was incarcerated. Petitioner also learned from the Florida Child Welfare Agency that Cecilia had been adjudicated a neglected child and was staying with maternal grandmother in Seminole City, Florida. After Respondent returned from Florida she did not reinstate her visits, but rather told the caseworker on June 25, 2010 while in court that she would get back to her to schedule visits. Caseworker M. testified that when she was assigned to Respondent's case from March 2008 to July 2008 and November 2010 to present, Respondent missed 75% of her visits. Foster mother Claudette L. testified that from February 2009 until January 2010 and from March to June 2010 Respondent had no visits with her daughters. “Evidence of insubstantial or infrequent contacts by a parent with ... her child[ren] permits a determination that such child[ren][are] permanently neglected” (Matter of Roderick W., 96 A.D.2d 746 [4th Dept 1983], lv denied61 N.Y.2d 602 [1983] [where Respondent allowed weeks, and months, to pass without visiting his child] ).
Caseworker M. also testified that Respondent did not properly plan to have her children returned to her. From January 8, 2008 until July 2008 the caseworker sent letters to Respondent only to have the letters returned. On April 16, 2008 at a home visit the caseworker found four-month-old Cecelia asleep on the couch; Respondent's roommates were arrested on gun charges that day. Respondent once called the caseworker at 10:00 a.m. and asked for daycare by 11:00 a.m. so she could go to school. Although Respondent completed Incredible Years Parenting Program in 2007, she did not demonstrate the skills and knowledge learned. Respondent was sanctioned from public assistance and had no resources for food or clothing; she did not complete mental health. Respondent refused to sign releases.
Foster mother testified that Pazaria, Winter, Latonia and Neighya have resided with her since 2006. On June 9, 2009, she was certified as their foster parent and on November 5, 2009, she became the foster parent for Cecelia. She testified that she would never refuse visits to Respondent with her daughters but that it is difficult to get along with her. Although sometimes loving Respondent will turn spiteful and “you don't know what to expect from her.” Respondent and the girls can continue to visit each other at Church.
Respondent failed to plan for her daughters' future. Respondent “failed to address successfully the problems that led to the removal of the children and continued to prevent [their] safe return” (Matter of Kyle S., 11 AD3d 935 [4th Dept 2004], quoting Matter of Ja–Nathan F., 309 A.D.2d 1152 [4th Dept 2003]; see also Matter of Shanika F., 265 A.D.2d 870 [4th Dept 1999]; Matter of Rebecca D., 222 A.D.2d 1092 [4th Dept 1995] ). Respondent has been unable to provide any realistic and feasible alternative to having her daughters remain in foster care ( see Matter of Baby Girl C., 1 AD3d 593 [2d Dept 2003] ). The Court draws a negative inference from Respondent's failure to appear and testify (Matter of Raymond D., 45 AD3d 1415 [4th Dept 2007] ) at fact finding. While Respondent did testify at disposition, the Court finds her testimony totally incredible.
NOW THEREFORE, it is
ADJUDGED, based upon clear and convincing evidence, that Pazaria M., Winter M., Latonia W., Neighya W. and Cecilia M. were permanently neglected by Respondent; and it is further
ADJUDGED that Respondent violated the terms of the Adjournment in Contemplation of Dismissal Order concerning Cecilia; and it is hereby
ORDERED that Respondent neglected Cecilia and is placed in Petitioner's custody; and it is further
ORDERED that the Respondent's parental rights are terminated; and it is further
ORDERED that Pazaria and Winter's guardianship and custody are committed to Petitioner for the purpose of adoption by Claudette L.; and it is further
ORDERED that Respondent may have post-termination contact with all children at a minimum of twice annually and such further visits as can be mutually arranged by Claudette L. and Respondent; and it is further
ORDERED that in the event Respondent fails over a six-month period to contact Claudette L. to arrange a visit or misses two visits in a year then further contact shall occur at the sole discretion of Ms. L.; and it is further
ORDERED that if Respondent engages in offensive conduct against the children or any acts of omission or commission which may tend to make the visits improper for the children then the visit shall be terminated.