In re Amoretta V.

227 A.D.2d 879, 643 N.Y.S.2d 694, 1996 N.Y. App. Div. LEXIS 6172

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 30, 1996
• Status: Published

Opinions

Mikoll, J. P.

Appeal from an order of the Family Court of Tompkins County (Sherman, J.), entered May 25,1994, which granted petitioner’s application, in a proceeding pursuant to Social Services Law § 384-b, to adjudicate respondent’s children to be permanently neglected, and terminated respondent’s parental rights.

Respondent’s son, born in 1989, and daughter, born in 1991, were placed in petitioner’s custody on November 6, 1991. On October 1, 1992, the children were adjudicated to be neglected within the meaning of Family Court Act § 1012 (f) (i) (B) and remained in petitioner’s custody. Thereafter, on September 13, 1993, petitioner filed a permanent neglect petition against respondent. Family Court determined that the children were permanently neglected. A dispositional hearing was then held, which resulted in the termination of respondent’s parental rights.

* This appeal ensued.

As it is undisputed that petitioner exercised diligent efforts to encourage and strengthen the parental relationship and that respondent maintained contact with the children, the focus of this appeal is whether petitioner established by clear and convincing evidence that respondent failed for a continuous period of one year or more to substantially plan for the future of the children, although physically and financially able to do so (see, Matter of Michael B., 58 NY2d 71, 74; see also, Social Services Law § 384-b [7] [a]).

The record, taken as a whole, supports the finding that respondent permanently neglected her children for over one year in failing to plan for their future in violation of Social Services Law § 384-b (7) (a). Despite petitioner’s early expectations that the family could be reunited and respondent’s initial attempts to comply with petitioner’s program, petitioner’s notes indicate that even at this point, the situation was precarious: "It was very shaky throughout the time of the kids being in placement, and the only way that we could really see if the parents had an ability or could take the responsibility of taking care of the children is to increase visits, give them more time with the children and see how they did”.

The record establishes that respondent did in fact fail to comply with petitioner’s plan in serious measure. From the time petitioner took over the care of the children, respondent’s irresponsibility increased. Despite diligent attempts by petitioner to reunite the family, respondent was never able to adequately care for the children. She demonstrated a persistent inability to cope with the children. To the detriment of her children, she allowed various people to live in her small apartment despite repeated orders to desist. She allowed an abusive paramour to live there whom she then married. She failed to protect the children from his excessive physical abuse of them under the guise of discipline. Respondent’s tolerance of his abuse of her was a source of alarm and emotional trauma to the children. Respondent also failed to cope with her son’s serious asthmatic condition by allowing his medication to run out, by failing to administer it correctly and by failing to plan for sufficient supply of drugs to sustain him during his visits with her. She also continued to allow smoking in her apartment when her son was there, all to his detriment. The child often returned to foster care with breathing difficulties, and all the children returned from visits smelling of smoke.

We reject respondent’s contention that she was unable to financially plan for the children’s welfare. The fact that a parent is receiving public assistance does not automatically excuse the parent from planning for the future of her children. Financial inability requires unequivocal proof that the amount of public assistance is inadequate (Matter of Christina Q., 156 AD2d 770, 774, lv denied 75 NY2d 708). Part of the proof here as to respondent’s inability to plan was her failure to have enough food for the children during visits. Despite being given food vouchers in the amount of $50 per child per visit to pay for the children’s food, respondent told petitioner that she could not feed the children on two occasions.

While respondent did make some initial progress in her parenting classes, she failed to cooperate with the Special Children’s Center vis-a-vis her son’s problems and generally failed to advance in parenting skills because of lack of contact and attendance at meetings. This was cogently laid bare in the record. Furthermore, the bedding situation for the children was totally inadequate. Respondent also failed to keep her daughter clean, and the child returned to foster care with diaper rash. Finally, respondent’s attendance at alcoholism counseling was sporadic and she failed to complete a prescribed program.

Accordingly, Family Court’s order granting the petition is affirmed.

Mercure and Spain, JJ., concur.

A separate permanent neglect petition was filed against the children’s father, which also culminated in the termination of his parental rights. He, however, is not a party to this appeal.