From Casetext: Smarter Legal Research

Orange Cnty. Dep't of Soc. Servs. v. Tammi G. (In re Winstoniya D.)

Supreme Court, Appellate Division, Second Department, New York.
Dec 3, 2014
123 A.D.3d 705 (N.Y. App. Div. 2014)

Summary

considering mother's struggles with substance-abuse and mental-health treatment in determining whether she was "physically and financially able" to care for children

Summary of this case from E.S. v. C.S.

Opinion

2013-10223 (Docket Nos. B-6142-12, B-6143-12)

12-03-2014

In the Matter of WINSTONIYA D. (Anonymous). Orange County Department of Social Services, petitioner-respondent; Tammi G. (Anonymous), appellant, et al., respondent. (Proceeding No. 1) In the Matter of Dese–Reye D. (Anonymous). Orange County Department of Social Services, petitioner-respondent; Tammi G. (Anonymous), appellant, et al., respondent. (Proceeding No. 2).

 Neal D. Futerfas, White Plains, N.Y. for appellant. Langdon C. Chapman, County Attorney, Goshen, N.Y. (Peter R. Schwarz of counsel), for petitioner-respondent. Gloria Marchetti–Bruck, Mount Kisco, N.Y., attorney for the children.


Neal D. Futerfas, White Plains, N.Y. for appellant.

Langdon C. Chapman, County Attorney, Goshen, N.Y. (Peter R. Schwarz of counsel), for petitioner-respondent.

Gloria Marchetti–Bruck, Mount Kisco, N.Y., attorney for the children.

JOHN M. LEVENTHAL, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.

Opinion Appeal from an order of fact-finding and disposition of the Family Court, Orange County (Carol S. Klein, J.), dated October 7, 2013. The order, insofar as appealed from, found that the mother permanently neglected the subject children, and terminated her parental rights.

ORDERED that the order of fact-finding and disposition is reversed insofar as appealed from, on the law and the facts, without costs or disbursements, the petitions insofar as asserted against the mother are denied, and the proceedings against the mother are dismissed.

The petitioner commenced these proceedings, inter alia, to terminate the mother's parental rights on the ground that the subject children were permanently neglected. By proceeding on this ground, the petitioner was obligated to prove, by clear and convincing evidence, that the mother “failed for a period of either at least one year or fifteen out of the most recent twenty-two months following the date such child[ren] came into the care of an authorized agency substantially and continuously or repeatedly to maintain contact with or plan for the future of the child[ren], although physically and financially able to do so, notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship” (Social Services Law § 384–b[7][a] ; see Matter of Austin C. [Alicia Y.], 77 A.D.3d 938, 939, 909 N.Y.S.2d 546 ).

The petitioner established, by clear and convincing evidence, that it exercised diligent efforts to encourage and strengthen the parental relationship by monitoring the mother's progress while she resided with the children in residential drug treatment programs, counseling her with regard to the importance of remaining in treatment, providing referrals for housing, drug treatment, and mental health services when the mother returned to the community, and arranging for visitation after the children were removed from the mother's care (see Social Services Law § 384–b[7][f] ; Matter of Star Leslie W., 63 N.Y.2d 136, 481 N.Y.S.2d 26, 470 N.E.2d 824 ; Matter of Kira J. [Lakisha J.], 108 A.D.3d 541, 968 N.Y.S.2d 566 ; Matter of Angel H. [Omayra G.], 107 A.D.3d 891, 968 N.Y.S.2d 138 ; Matter of Temple S.M. [Tricia M.], 97 A.D.3d 681, 947 N.Y.S.2d 611 ; Matter of Joseph W. [Monica W.], 95 A.D.3d 1347, 944 N.Y.S.2d 915 ).

However, the petitioner failed to establish, by clear and convincing evidence, that during the relevant statutory period, the mother failed substantially and continuously to maintain contact with the children or plan for their future, although physically and financially able to do so (see Social Services Law § 384–b[7][a] ; see Matter of Austin C. [Alicia Y.], 77 A.D.3d at 939, 909 N.Y.S.2d 546 ). The record demonstrates that the children came into the care and custody of the Orange County Department of Social Services on June 30, 2011. On July 26, 2011, the mother entered a residential drug treatment program and, thereafter, sometime prior to September 19, 2011, the children were discharged to the mother at the treatment program on a trial basis. The mother remained in residential drug treatment with the children until the Family Court, in April 2012, permitted her to return to Orange County with the children and to enter outpatient treatment. On June 6, 2012, the children were removed from the mother's care based on a report that the mother may have been using substances again. After the children were removed, the mother consistently visited the children. Although the mother relapsed on one occasion during the relevant statutory period, did not comply with the court's mandate that she attend substance abuse therapy sessions at a 90% rate, and inconsistently attended appointments for mental health treatment, it cannot be said, on this record, that the mother failed to plan for the return of the children. The mother has maintained consistent contact with the children, and the record demonstrates a very strong and loving bond between the mother and the children. The record further demonstrates that the mother planned for the children's future by substantially complying with the terms of prior court orders, including participating in residential and outpatient drug treatment programs and completing important parenting classes (see Matter of Austin C. [Alicia Y.], 77 A.D.3d at 939, 909 N.Y.S.2d 546 ). Thus, the record supports the conclusion that the mother planned for the future of the children to the extent she was physically and financially able to do so (see Social Services Law § 384–b[7][a] ). Under these circumstances, the Family Court erred in adjudicating the children permanently neglected by the mother and terminating her parental rights (see Matter of Austin C. [Alicia Y.], 77 A.D.3d 938, 909 N.Y.S.2d 546 ; Matter of Patricia C., 63 A.D.3d 1710, 881 N.Y.S.2d 260 ; see also Matter of Michael B., 58 N.Y.2d 71, 459 N.Y.S.2d 254, 445 N.E.2d 637 ).

In light of our determination, we need not address the mother's remaining contentions.


Summaries of

Orange Cnty. Dep't of Soc. Servs. v. Tammi G. (In re Winstoniya D.)

Supreme Court, Appellate Division, Second Department, New York.
Dec 3, 2014
123 A.D.3d 705 (N.Y. App. Div. 2014)

considering mother's struggles with substance-abuse and mental-health treatment in determining whether she was "physically and financially able" to care for children

Summary of this case from E.S. v. C.S.
Case details for

Orange Cnty. Dep't of Soc. Servs. v. Tammi G. (In re Winstoniya D.)

Case Details

Full title:In the Matter of WINSTONIYA D. (Anonymous). Orange County Department of…

Court:Supreme Court, Appellate Division, Second Department, New York.

Date published: Dec 3, 2014

Citations

123 A.D.3d 705 (N.Y. App. Div. 2014)
997 N.Y.S.2d 716
2014 N.Y. Slip Op. 8429

Citing Cases

Suffolk Cnty. Dep't of Soc. Servs. v. Olivia C. (In re Sarah C.)

Moreover, she participated in only three hours per week of unsupervised visitation with the child, and such a…

In re Tylynn M.A.

Order, Family Court, Bronx County (Karen I. Lupuloff, J.), entered on or about March 6, 2015, which granted…