SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1030 

CAF 15-00093 

PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND CURRAN, JJ. 

 

IN THE MATTER OF KENDALLE K. 

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ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, MEMORANDUM AND ORDER

PETITIONER-RESPONDENT; 

 

CORIN K., RESPONDENT-APPELLANT. 

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

ERIC R. ZIOBRO, BUFFALO, FOR PETITIONER-RESPONDENT. 

DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, THE LEGAL AID BUREAU OF

BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL). 

 

Appeal from an order of the Family Court, Erie County (Sharon M.

LoVallo, J.), entered November 17, 2014 in a proceeding pursuant to

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

terminated the parental rights of respondent mother to the subject

child on the ground of permanent neglect and freed the child for

adoption.

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 mother appeals from an order that, among other

things, terminated her parental rights to the subject child on the

ground of permanent neglect and freed the child for adoption. The

child was initially removed from the mother’s custody after it was

discovered that the child had been sexually abused by the mother’s

boyfriend. Thereafter, the mother admitted that the child had

disclosed the abuse to her and that she had failed to take action to

protect the child. Family Court found that the mother had neglected

the child, and the mother agreed to a service plan with petitioner. 

Petitioner subsequently commenced this proceeding.

Contrary to the contention of the mother, we conclude that

petitioner established by clear and convincing evidence that it made

diligent efforts to encourage and strengthen the relationship between

the mother and the child (see Social Services Law § 384-b [7] [a];

Matter of Jerikkoh W. [Rebecca W.], 134 AD3d 1550, 1550, lv denied 27

NY3d 903). The evidence at the fact-finding hearing established that

petitioner, among other things, facilitated visitation between the

mother and child, arranged for parenting classes and monitored the
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CAF 15-00093 

mother’s progress therein, conducted service plan reviews, and

referred the mother to mental health services (see Matter of Joshua

T.N. [Tommie M.], 140 AD3d 1763, 1763, lv denied 28 NY3d 904; Jerikkoh

W., 134 AD3d at 1550-1551; Matter of Burke H. [Richard H.], 134 AD3d

1499, 1500).

Contrary to the mother’s further contention, petitioner

established that, despite those efforts, the mother failed to plan

substantially and continuously for the future of the child, although

able to do so (see Social Services Law § 384-b [7] [a]). “ ‘[T]o plan

for the future of the child’ . . . mean[s] to take such steps as may

be necessary to provide an adequate, stable home and parental care for

the child” (§ 384-b [7] [c]). Here, although the mother participated

in some of the services offered by petitioner, the record establishes,

among other things, that she failed to comply with the requirement

that she consistently attend mental health counseling as recommended

by petitioner (see Jerikkoh W., 134 AD3d at 1551; Burke H., 134 AD3d

at 1501; Matter of Nicholas B. [Eleanor J.], 83 AD3d 1596, 1597, lv

denied 17 NY3d 705). The court thus properly concluded that the

mother refused to engage meaningfully in the treatment necessary to

address her failure to place the child’s needs before her own, which

repeatedly jeopardized the child’s safety. Considering the totality

of the evidence presented at the fact-finding hearing, we conclude

that petitioner demonstrated by clear and convincing evidence that the

mother “did not successfully address or gain insight into the problem

that led to the removal of the child and continued to prevent the

child’s safe return” (Matter of Giovanni K., 62 AD3d 1242, 1243, lv

denied 12 NY3d 715; see Jerikkoh W., 134 AD3d at 1551; Burke H., 134

AD3d at 1501).

Contrary to the mother’s further contention, the record supports

the court’s determination that termination of her parental rights is

in the best interests of the child, 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’s unsettled familial

status (see Burke H., 134 AD3d at 1502).

Entered: November 18, 2016 Frances E. Cafarell

Clerk of the Court