State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 9, 2015 519951 

________________________________

In the Matter of MARCUS BB.,

Alleged to be a Permanently 

Neglected Child.

ULSTER COUNTY DEPARTMENT OF MEMORANDUM AND ORDER

SOCIAL SERVICES,

Respondent;

DONNA AA.,

Appellant.

________________________________

Calendar Date: May 26, 2015

Before: Lahtinen, J.P., McCarthy, Rose and Clark, JJ.

__________

Theodore J. Stein, Woodstock, for appellant.

Philip M. Cataldi, Ulster County Department of Social

Services, Kingston, for respondent.

Daniel Gartenstein, Kingston, attorney for the child.

__________

Clark, J.

Appeals from two orders of the Family Court of Ulster

County (McGinty, J.), entered January 29, 2014 and March 13,

2014, which, among other things, granted petitioner's

application, in a proceeding pursuant to Social Services Law

§ 384-b, to adjudicate respondent's child to be permanently

neglected, and terminated respondent's parental rights.

As set forth more fully in our prior decision (Matter of

Marcus BB. [Donna AA.], ___ AD3d ___, 2015 NY Slip Op 04690
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[2015]), respondent is the mother of a son (born in 2007) who was

removed from her care in June 2011 and adjudicated a neglected

child on account of, among other things, respondent's drug use. 

In August 2012, the child was returned to respondent on a trial

discharge subject to petitioner's supervision. During an

unannounced visit nearly two months later, the child's father was

found in respondent's home in violation of a prior court order

requiring that he stay away from the child except during

scheduled supervised visitation.1 Also present at respondent's

apartment was respondent's adult daughter, as well as the

daughter's boyfriend. The child was immediately removed from

respondent's home and returned to foster care. 

In April 2013, alleging that respondent had failed to

substantially plan for the future of the child, petitioner

commenced this proceeding, seeking a finding that respondent

permanently neglected the child and the termination of

respondent's parental rights. After a hearing at which

respondent did not testify, Family Court granted the petition

and, following the dispositional hearing, concluded that

termination of respondent's parental rights was in the child's

best interests. Family Court also issued an order of protection

prohibiting respondent from contacting the child until his

eighteenth birthday. Respondent now appeals from both orders.

Social Services Law § 384-b (7) (a) defines a permanently

neglected child as a child who is in the care of an authorized

agency and whose parent has failed for a period of more than one

year following the date such child 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,

although physically and financially able to do so,

notwithstanding the agency's diligent efforts to encourage and

strengthen the parental relationship (see Matter of Star Leslie

W., 63 NY2d 136, 140 [1984]). Respondent and the attorney for

the child both contend that a lack of diligent efforts may be

1 The father, likewise, had been found to have neglected

the child because of drug use, and his contact with the child was

restricted to supervised visits at the time.
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found to the limited extent that petitioner did not offer any

services aimed at preparing respondent for the issues she may

encounter during the period of trial discharge. Contrary to this

position, however, the record before us demonstrates that

respondent received regular counseling and guidance in order to

strengthen her parenting skills and cope with her addiction and

mental health issues – skills that would likely apply during the

period of trial discharge. Thus, we find Family Court's

threshold determination of diligent efforts to be supported by

the record and turn to the second of the two-part inquiry,

namely, whether respondent substantially planned for the child's

future (see Matter of Lawrence KK. [Lawrence LL.], 72 AD3d 1233,

1234 [2010], lv denied 14 NY3d 713 [2010]; Matter of Laelani B.,

59 AD3d 880, 881-882 [2009]). 

To substantially plan, a parent must, at a minimum, take

meaningful steps to correct the conditions that led to the

child's initial removal from the home (see Matter of Nathaniel

T., 67 NY2d 838, 840 [1986]; Matter of Alaina E., 59 AD3d 882,

885 [2009], lv denied 12 NY3d 710 [2009]). "However, the

standards to evaluate whether a parent has met the requirement to

substantially plan should not be set unrealistically high, lest

the planning requirement become simply a device to permit

termination in nearly all cases where the other statutory

conditions are met" (Matter of Tatianna K. [Claude U.], 79 AD3d

1184, 1186 [2010] [internal quotation marks and citation

omitted]; see Matter of Orlando F., 40 NY2d 103, 111 [1976]). 

Here, petitioner's only witness, the caseworker assigned to

the child in August 2011, testified at the fact-finding hearing

that respondent continually maintained meaningful contact with

the child and, as of August 2012, had addressed all the issues

that had resulted in the child's removal. Specifically,

respondent had been successfully discharged from an inpatient

drug rehabilitation program, had completed outpatient substance

abuse services, had maintained her sobriety, had successfully

completed a course of mental health counseling, was in compliance

with the terms of her probation, had obtained appropriate

housing, and had completed a parenting skills program, among

other positive things. As a result, the child was returned to

her on a trial discharge. Once it was discovered that respondent
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was permitting the child to have contact with his father outside

the supervision of petitioner, the child was again removed from

respondent's home. Additional evidence demonstrated that, after

the second removal, respondent again maintained continuous and

meaningful contact with the child, complied in all respects with

the order of supervision and, per the caseworker, continued to

plan for the return of her child. In this regard, the April 2013

permanency plan admitted into evidence indicated that respondent

was working to address the issues that led to the child's most

recent removal. Notably, the caseworker explained that, even as

of the date of commencement of this permanent neglect proceeding,

plans were underway to return the child to respondent.2

Given respondent's consistent and meaningful contact with

the child and successful completion of all the recommended

services so as to address the problems that led to the child's

removal, the record as a whole does not contain clear and

convincing evidence that respondent permanently neglected her

child.3 To find otherwise would be to hold respondent to an

unreasonable standard and ignore well-settled precedent requiring

only evidence of meaningful steps toward amelioration of the

original condition, not proof of perfect compliance with

petitioner's mandates. Make no mistake, we do not disagree that

respondent demonstrated a lapse in judgment by permitting the

father to have contact with the child in violation of a court

order; however, without more, we find such conduct insufficient

to form a sound and substantial basis for a finding of permanent

2 In fact, "return to parent" continued to be the

recognized permanency goal five months later at the start of the

fact-finding hearing.

3 We are aware that respondent experienced a relapse in

June 2013, but note that proof of "[t]estimony relating to

matters occurring subsequent to the filing of a petition for

permanent neglect is inadmissible during the fact-finding stage

of the proceeding" (Matter of Anthony S., 291 AD2d 747, 748

[2002] [internal quotation marks and citations omitted]; see

Family Ct Act § 624; Matter of Christopher II., 222 AD2d 900, 902

[1995], lv denied 87 NY2d 812 [1996]). 
-5- 519951 

neglect. The record before us contains no proof of the

circumstances of the father's contact with the child – e.g.,

whether he was under the influence of drugs or alcohol when he

was with the child or whether he was engaging in drug use in the

presence of the child – and, as such, we think petitioner did not

meet its burden of proof. Accordingly, the petition must be

dismissed (see Matter of Marissa O. [Grace NN.], 119 AD3d 1097,

1097-1099 [2014]; Matter of Victor WW. [Salma XX.], 96 AD3d 1281,

1282 [2012]; Matter of Tatianna K. [Claude U.], 79 AD3d at 1185-

1187).

Were we to continue our inquiry, we would also find error

in Family Court's determination to terminate respondent's

parental rights. Keeping in mind that the purpose of a

disposition of termination is to free a child for adoption, we

note that the plan for the child here – a plan that was the

subject of frank discussion at the dispositional hearing – was

for him to be returned to the care and custody of his father.4 

In this regard, even petitioner acknowledged during disposition

that termination of respondent's parental rights was impractical

as there was no need to free the child for adoption. Moreover,

the position expressed at the dispositional hearing – i.e., that

a suspended judgment was not a viable disposition because

respondent had been recommended to a two-year drug treatment

program and, therefore, would be incapable of complying with the

terms and conditions of a suspended judgment – is legally

incorrect (see Family Ct Act § 633 [b]; Matter of Michael B., 80

NY2d 299, 311 [1992]; Matter of Jonathan J., 47 AD3d 992, 993

[2008], lv denied 10 NY3d 706 [2008]). Thus, we would have found

termination of respondent's parental rights to be against the

best interests of the child. 

4 We are troubled by the fact that Family Court was willing

to terminate respondent's parental rights, in part, due to her

allowing contact between the child and his father when the plan

was to restore custody to the father. It is of further concern

that the record before us appears devoid of consideration of

Family Ct Act article 6, as sole custody of the child by the

father may be achieved without a termination of respondent's

parental rights. 
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Finally, although rendered moot by the foregoing,

respondent has already appealed from the order of protection (see

Matter of Marcus BB. [Donna AA.], 2015 NY Slip Op 04690, at *1). 

In this regard, we briefly note that duplicate appeals from the

same order or judgment are not permitted and are subject to

dismissal (see generally Parker v Linden, 20 NE 861 [1889]; Hunt

v New York City Hous. Auth., 272 AD2d 69 [2000]). 

Lahtinen, J.P., McCarthy and Rose, JJ., concur.

ORDERED that the order entered March 13, 2014 is reversed,

on the law, without costs, and petition dismissed.

ORDERED that the appeal from the order entered January 29,

2014 is dismissed, as moot, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court