Opinion
1181 CAF 18–01315
01-31-2020
In the MATTER OF GIOHNA R. and Johna R. Onondaga County Department of Children and Family Services, Petitioner–Respondent; v. John R., and Tracy R., Respondents–Appellants.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (REBECCA L. KONST OF COUNSEL), FOR RESPONDENT–APPELLANT JOHN R. FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT–APPELLANT TRACY R. ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (YVETTE VELASCO OF COUNSEL), FOR PETITIONER–RESPONDENT. LISA S. CUOMO, SYRACUSE, ATTORNEY FOR THE CHILDREN.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (REBECCA L. KONST OF COUNSEL), FOR RESPONDENT–APPELLANT JOHN R.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT–APPELLANT TRACY R.
ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (YVETTE VELASCO OF COUNSEL), FOR PETITIONER–RESPONDENT.
LISA S. CUOMO, SYRACUSE, ATTORNEY FOR THE CHILDREN.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND TROUTMAN, 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 father and respondent mother appeal from an order that, inter alia, terminated their parental rights with respect to the subject children on the ground of permanent neglect and freed the children for adoption.
Initially, contrary to the mother's contention on her appeal, we conclude on this record that Family Court's prehearing ruling precluding certain evidence does not constitute reversible error (cf. Matter of Star Leslie W. , 63 N.Y.2d 136, 147, 481 N.Y.S.2d 26, 470 N.E.2d 824 [1984] ).
We also reject the mother's contention that the court erred in finding that she permanently neglected the subject children. Upon our review of the record, we conclude that "[p]etitioner met its burden of establishing by clear and convincing evidence that it made diligent efforts to encourage and strengthen the relationship between the mother and [the children] by providing services and other assistance aimed at ameliorating or resolving the problems preventing [the children's] return to [the mother's] care ..., and that the [mother] failed substantially and continuously to plan for the future of the child[ren] although physically and financially able to do so ... Although the [mother] participated in [some of] the services offered by petitioner, [she] did not successfully address or gain insight into the problems that led to the removal of the child[ren] and continued to prevent the child[ren's] safe return" ( Matter of Michael S. [Kathryne T.] , 162 A.D.3d 1651, 1652, 75 N.Y.S.3d 444 (4th Dept 2018), lv denied 32 N.Y.3d 906, 89 N.Y.S.3d 112, 113 N.E.3d 946 [2018] [internal quotation marks omitted]; see Social Services Law § 384–b [7][a] ; Matter of Alexander S. [David S.] , 130 A.D.3d 1463, 1463, 12 N.Y.S.3d 747 (4th Dept. 2015), lv. denied 26 N.Y.3d 910, 22 N.Y.S.3d 163, 43 N.E.3d 373 [2015], appeal dismissed and lv. denied 26 N.Y.3d 1030, 20 N.Y.S.3d 339, 41 N.E.3d 1154 [2015], rearg. denied 26 N.Y.3d 1132, 27 N.Y.S.3d 495, 47 N.E.3d 775 [2016] ).
Contrary to the mother's further contention, we conclude that "the record supports the court's determination that termination of her parental rights is in the best interests of the child[ren], and that a suspended judgment was not warranted under the circumstances inasmuch as any progress made by the mother prior to the dispositional determination was insufficient to warrant any further prolongation of the child[ren's] unsettled familial status" ( Matter of Kendalle K. [Corin K.] , 144 A.D.3d 1670, 1672, 41 N.Y.S.3d 832 (4th Dept. 2016) ).
The mother's contention that the Attorney for the Children (AFC) was ineffective because she substituted her judgment for that of the children is "based on matters outside the record and is not properly before us" ( Matter of Daniel K. [Roger K.] , 166 A.D.3d 1560, 1561, 88 N.Y.S.3d 735 (4th Dept. 2018), lv denied 32 N.Y.3d 919, 100 N.Y.S.3d 217, 123 N.E.3d 876 [2019] [internal quotation marks omitted] ). We also conclude that the record does not support the mother's additional contention that the AFC represented conflicting interests requiring her disqualification (see Matter of Smith v. Smith , 241 A.D.2d 980, 980, 667 N.Y.S.2d 141 (4th Dept. 1997) ; cf. Matter of Brian S. [Tanya S.] , 141 A.D.3d 1145, 1148, 34 N.Y.S.3d 851 (4th Dept. 2016) ).
We reject the father's contention on his appeal that the court erred in finding that he permanently neglected the subject children. Contrary to the father's contention, we conclude that "there is no evidence that [the father] had a realistic plan to provide an adequate and stable home for the child[ren]" ( Matter of Jarrett P. [Jeremy P.] , 173 A.D.3d 1692, 1695, 105 N.Y.S.3d 230 (4th Dept. 2019), lv denied 34 N.Y.3d 902, 112 N.Y.S.3d 693, 136 N.E.3d 428 [2019] [internal quotation marks omitted] ). Contrary to the father's further contention, the record supports the court's determination that termination of the father's parental rights was in the best interests of the children (see Kendalle K. , 144 A.D.3d at 1672, 41 N.Y.S.3d 832 ).
Finally, we reject the father's contention that reversal is required because petitioner failed to properly notify the children's uncle and his fiance´e of the instant proceeding. Even assuming, arguendo, that petitioner violated its statutory duty (see Family Ct Act § 1017[1][a] ), the record establishes that the uncle and his fiance´e were aware for years that the children had been placed in foster care, yet they did not express any interest in obtaining custody until several months into the fact-finding hearing. We thus conclude that no prejudice arose from any failure by petitioner to notify the uncle and his fiance´e of this proceeding (see Matter of Mirabella H. [Angela I.] , 162 A.D.3d 1733, 1734, 80 N.Y.S.3d 782 (4th Dept. 2018), lv denied 32 N.Y.3d 909, 89 N.Y.S.3d 116 , 113 N.E.3d 950 [2018] ; 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) ).