In re Aniya L.

124 A.D.3d 1001, 1 N.Y.S.3d 527

Opinion

Garry, J.

Appeal from two orders of the Family Court of Albany County (Maney, J.), entered February 11, 2013 and June 14, 2013, which granted petitioner’s application, in a proceeding [1002] pursuant to Social Services Law § 384-b, to adjudicate respondent’s children to be permanently neglected, and terminated respondent’s parental rights.

Respondent is the mother of two children (born in 2009 and 2010). The older child was removed from respondent’s custody when she was approximately 10 weeks old, and the younger child was removed immediately after her birth. Both children were placed in petitioner’s custody and later adjudged to be neglected upon respondent’s admissions. In September 2011, petitioner commenced this permanent neglect proceeding. Following fact-finding and dispositional hearings, Family Court found that respondent had permanently neglected the children and that it was in their best interests to terminate respondent’s parental rights and free the children for adoption. Respondent appeals from the fact-finding and dispositional orders.*

As an initial matter, we reject respondent’s contention that Family Court erred by denying her request to require the attorney for the children to cross-examine petitioner’s witnesses before respondent’s cross-examination, or by permitting the attorney for the children to ask leading questions during cross-examination. Both of these claims are premised on respondent’s incorrect view that petitioner’s witnesses effectively became witnesses for the attorney for the children when she agreed with petitioner’s position. The duty of an attorney for the child is to represent the child and advocate for his or her position (see Family Ct Act § 241; Matter of Mark T. v Joyanna U., 64 AD3d 1092, 1093 [2009]). Contrary to respondent’s claim, the fact that here the exercise of this duty resulted in a position similar to that of petitioner did not effectively convert the two parties into one entity. Accordingly, the attorney for the children was entitled to ask leading questions while cross-examining petitioner’s witnesses (see Jerome Prince, Richardson on Evidence § 6-230 at 376 [Farrell 11th ed 1995]). We find no abuse of Family Court’s discretion to “determine the sequence in which the issues shall be tried and otherwise regulate the conduct of the trial” (CPLR 4011; see Feldsherg v Nitschke, 49 NY2d 636, 643 [1980]).

Next, Family Court properly found that petitioner complied with its threshold statutory obligation to exercise diligent efforts to encourage and strengthen the relationship between re[1003] spondent and the children (see Social Services Law § 384-b [7] [a]; Matter of Star Leslie W., 63 NY2d 136, 142 [1984]). Petitioner’s caseworker testified that the obstacles preventing the return of the children were respondent’s mental health issues and limited parenting skills, as well as concerns about domestic violence and unstable housing. As for mental health, following the removal of the older child, petitioner referred respondent — who had previously been diagnosed with bipolar disorder — to a psychologist for an evaluation. The psychologist concluded that she suffered from borderline personality disorder, a condition with symptoms similar to bipolar disorder, and recommended that she receive a form of cognitive therapy known as Dialectical Behavior Therapy. Thereafter, this treatment was provided to respondent. Petitioner further developed a service plan, provided case management, prevention and family services and, when an opening became available, enrolled respondent in a specialized program designed for parents and families affected by mental illness that provided up to 10 hours per week of intensive home-based preventive services. The program’s case planner testified that, after obtaining information on respondent’s mental illness, she adjusted her services to better meet respondent’s needs by such means as maintaining a predictable, routine schedule of home visits, scheduling the visits to facilitate respondent’s therapy appointments and transporting respondent to these appointments. The program’s parent educator consulted a psychologist as well as respondent’s counselor and therapist for guidance on understanding respondent’s needs and diagnosis, and then adapted her services by, among other things, presenting educational material in a concrete fashion. The workers testified that they further adjusted their services to address concerns voiced by respondent by, among other things, consolidating appointments and reducing the number of hours spent on home-based visits when respondent felt overwhelmed, and by honoring her request to conduct educational sessions separately from supervised visits.

As for parenting skills, petitioner engaged respondent in a parenting education curriculum offered through the specialized program that covered such topics as nurturing, empathy, corporal punishment and child development. Petitioner also provided respondent with information on failure to thrive, a condition involving dehydration and weight loss that had affected the older child while she was in respondent’s care and that had led to her hospitalization and removal. Petitioner twice scheduled meetings between respondent and the child’s pediatrician for this purpose and, when respondent failed to attend, arranged a third meeting with a nurse, which respondent at[1004] tended. The case planner and parent educator further provided preventive services addressing domestic violence issues between respondent and the children’s father and the instability of respondent’s housing. Finally, petitioner facilitated regular supervised visitation throughout the period of the children’s removal. Thus, the record supports Family Court’s finding that “petitioner made the requisite diligent efforts that were appropriately tailored to respondent’s [individual] circumstances” (Matter of Samuel DD. [Margaret DD.], 123 AD3d 1159, 1161 [2014]; see Matter of Nicole K. [Melissa K.], 85 AD3d 1231, 1232 [2011]; Matter of Anjoulic J., 18 AD3d 984, 987 [2005]).

We are unpersuaded by respondent’s claim that petitioner did not prove that she failed to plan for the future of her children (see Social Services Law § 384-b [7] [a], [c]). Mere participation in classes and programs is not enough to meet this requirement when a parent does not “benefit from the services offered and utilize the tools or lessons learned in those classes in order to successfully plan for the child’s future” (Matter of Elijah NN., 20 AD3d 728, 730 [2005]; see Matter of Jyashia RR. [John VV.], 92 AD3d 982, 983-984 [2012]; Matter of Willard L., 23 AD3d 964, 965-966 [2005], lv denied 6 NY3d 708 [2006]). Although respondent participated in the home-based parent education program, she canceled many visits, failed to complete homework assignments and made comments to the effect that she did not need to do so because she already possessed the skills in question. As a result of respondent’s failure to engage with the program or improve her parenting skills, the parent educator testified that she did not receive a certificate of completion. Respondent later withdrew from the parenting education aspect of the specialized program; she stated that she would find her own parenting class, but did not do so.

Free access — add to your briefcase to read the full text and ask questions with AI

In re Aniya L., 124 A.D.3d 1001, 1 N.Y.S.3d 527 (N.Y. Ct. App. 2015).

124 A.D.3d 1001 (In re Aniya L.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

In Re the Guardianship of Star Leslie W.
470 N.E.2d 824 (New York Court of Appeals, 1984)
Feldsberg v. Nitschke
404 N.E.2d 1293 (New York Court of Appeals, 1980)
Marianne R. v. Otsego County Department of Social Services
18 A.D.3d 984 (Appellate Division of the Supreme Court of New York, 2005)
In re Elijah NN.
20 A.D.3d 728 (Appellate Division of the Supreme Court of New York, 2005)
In re Willard L.
23 A.D.3d 964 (Appellate Division of the Supreme Court of New York, 2005)
In re Angelica VV.
53 A.D.3d 732 (Appellate Division of the Supreme Court of New York, 2008)
Mark T. v. Joyanna U.
64 A.D.3d 1092 (Appellate Division of the Supreme Court of New York, 2009)
In re Clifton ZZ.
75 A.D.3d 683 (Appellate Division of the Supreme Court of New York, 2010)
In re Nicole K.
85 A.D.3d 1231 (Appellate Division of the Supreme Court of New York, 2011)
In re Kellcie NN.
85 A.D.3d 1251 (Appellate Division of the Supreme Court of New York, 2011)
In re Jyashia RR.
92 A.D.3d 982 (Appellate Division of the Supreme Court of New York, 2012)
In re Summer G.
93 A.D.3d 959 (Appellate Division of the Supreme Court of New York, 2012)
In re Joseph ZZ.
245 A.D.2d 881 (Appellate Division of the Supreme Court of New York, 1997)