SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1104 

CAF 11-01187 

PRESENT: FAHEY, J.P., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ. 

 

IN THE MATTER OF GENA S. 

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GENESEE COUNTY DEPARTMENT OF SOCIAL SERVICES, 

PETITIONER-RESPONDENT; 

 MEMORANDUM AND ORDER

KAREN M., RESPONDENT-APPELLANT. 

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JACQUELINE M. GRASSO, ESQ., ATTORNEY FOR THE 

CHILD, APPELLANT. 

(APPEAL NO. 1.)

DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT.

JACQUELINE M. GRASSO, ATTORNEY FOR THE CHILD, BATAVIA, APPELLANT PRO

SE.

CHARLES N. ZAMBITO, COUNTY ATTORNEY, BATAVIA (PAULA A. CAMPBELL OF

COUNSEL), FOR PETITIONER-RESPONDENT.

 

Appeals from an order of the Family Court, Genesee County (Eric

R. Adams, J.), entered May 19, 2011 in a proceeding pursuant to Social

Services Law § 384-b. The order, among other things, transferred the

guardianship and custody of Gena S. to petitioner. 

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law without costs and the matter is

remitted to Family Court, Genesee County, for further proceedings in

accordance with the following Memorandum: Respondent mother is the

mother of Gena S., Misty S. and Shaundra D. (children). In appeal

Nos. 1 through 3, the mother appeals from respective orders of

disposition that, inter alia, terminated her parental rights with

respect to each child on the ground of permanent neglect and freed

each child for adoption (dispositional orders). In appeal Nos. 4

through 6, the mother appeals from respective orders determining that

the continuation of the permanency goal of placement for adoption is

in the best interests of each child (permanency orders). Gena S.

appeals from the orders relating to her in appeal Nos. 1 and 4.

We address the mother’s appeals first and note at the outset that

her appeals from the permanency orders (appeal Nos. 4 through 6) must

be dismissed. “Inasmuch as her parental rights had been terminated,

[the mother] lacked standing to participate in the permanency hearing

conducted by [Family Court]. [The mother] thus is not aggrieved by

the permanency hearing orders and lacks standing to pursue her appeals
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CAF 11-01187 

from the orders in [appeal Nos. 4 through 6]” (Matter of April C., 31

AD3d 1200, 1201).

In her appeals from the dispositional orders (appeal Nos. 1

through 3), the mother contends that the court erred in refusing to

approve her plan for the children to live with a friend of hers while

the mother was incarcerated. That contention lacks merit inasmuch as

the record establishes that petitioner, not the court, determined that

the mother’s friend was not a viable resource for the children. We

further reject the mother’s contention that the court improperly

determined that she failed to plan for the future of the children,

although she was able to do so (see generally Social Services Law §

384-b [7] [a]; Matter of Star Leslie W., 63 NY2d 136, 142; Matter of

John B. [Julie W.], 93 AD3d 1221, 1222, lv denied 19 NY3d 806; Matter

of Giovanni K., 62 AD3d 1242, 1243, lv denied 12 NY3d 715; cf. Matter

of Rachael N. [Christine N.], 70 AD3d 1374, 1374, lv denied 15 NY3d

708). Here, the record establishes that the mother’s only viable plan

for the children was that they remain in foster care until she is

released from incarceration. The failure of an incarcerated parent to

provide any “realistic and feasible” alternative to having the

children remain in foster care until the parent’s release from prison,

however, supports a finding of permanent neglect (Matter of Jamel

Raheem B. [Vernice B.], 89 AD3d 933, 935, lv denied 18 NY3d 808; see §

384-b [7] [c]; Matter of “Female” V., 21 AD3d 1118, 1119, lv denied 6

NY3d 708, 6 NY3d 709; see also Matter of Gregory B., 74 NY2d 77, 90,

rearg denied 74 NY2d 880). Contrary to the mother’s suggestion, this

is not a case in which her prolonged separation from the children was

“due to litigation initiated or necessitated by [petitioner’s]

actions” (Matter of Sanjivini K., 47 NY2d 374, 381).

We next address the appeals of Gena S. With regard to her appeal

from the dispositional order, Gena contends that the court should not

have terminated the mother’s parental rights with respect to her. As

stated by the attorney for the child representing Gena (AFC),

throughout the course of this matter, “Gena’s wishes could not [have

been] any clearer; she consistently stated that she wants to be

reunited with the mother.” Gena, who was born in 1997, was

approximately one month shy of her 14th birthday when the

dispositional order at issue was entered on May 19, 2011, and her

consent to adoption would have been required had she been 14 years old

at that time (see Domestic Relations Law § 111 [1] [a]). Gena is now

over 15 years old and, according to the AFC, she still refuses to

consent to adoption. The AFC contends that Gena “has no real bond

with anyone” except for the mother and Gena’s sisters, and that it is

highly unlikely that Gena will ever be adopted. 

We may consider those new facts and allegations “to the extent

[that] they indicate that the record before us is no longer

sufficient” to determine whether termination of respondent’s parental

rights is in Gena’s best interests (Matter of Michael B., 80 NY2d 299,

318; see Matter of Nichols v Nichols-Johnson, 78 AD3d 1679, 1680; see

generally Matter of Samuel Fabien G., 52 AD3d 713, 714). Inasmuch as

it is not clear on the record before us that termination of the
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CAF 11-01187 

mother’s parental rights with respect to Gena is in Gena’s best

interests, we remit the matter to Family Court for a new dispositional

hearing to determine the best interests of that child. We note that

the conflict between the result with respect to Gena and the results

with respect to her sisters is of no moment inasmuch as termination

has been upheld with respect to younger siblings in similar

circumstances (see Matter of Marc David D., 20 AD3d 565, 567; Matter

of Dominique A.W., 17 AD3d 1038, 1039, lv denied 5 NY3d 706).

With regard to Gena’s appeal from the permanency order, we note

that we have held that a permanency goal of placement for adoption is

not always in the best interests of a child over the age of 14 (see

Matter of Lavalle W. [Halvorsen], 88 AD3d 1300, 1300-1301; Matter of

Sean S. [Halvorsen], 85 AD3d 1575, 1576). In view of that precedent,

and the uncertainty as to what an appropriate alternative permanency

goal may now be for Gena, we remit the matter to Family Court for the

determination of a new permanency goal appropriate for her.

In light of our determination, we need not address Gena’s

contention concerning the court’s refusal to grant posttermination

contact between her and the mother. 

Entered: December 21, 2012 Frances E. Cafarell

Clerk of the Court