SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1235 

CAF 14-00250, CAF 14-00289 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ. 

 

IN THE MATTER OF BURKE H. 

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ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, 

PETITIONER-RESPONDENT; 

 MEMORANDUM AND ORDER

RICHARD H. AND TIFFANY H., 

RESPONDENTS-APPELLANTS. 

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IN THE MATTER OF SEAN H., DONNA H. AND 

CHLOE H. 

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ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, 

PETITIONER-RESPONDENT; 

 

RICHARD H. AND TIFFANY H., 

RESPONDENTS-APPELLANTS. 

BERNADETTE HOPPE, BUFFALO, FOR RESPONDENT-APPELLANT RICHARD H.

COLUCCI & GALLAHER, P.C., BUFFALO (REGINA A. DELVECCHIO OF COUNSEL),

FOR RESPONDENT-APPELLANT TIFFANY H. 

JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER-RESPONDENT.

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

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

 

Appeals from an order of the Family Court, Erie County (Margaret

O. Szczur, J.), entered January 23, 2014 in proceedings pursuant to

Family Court Act article 10 and Social Services Law § 384-b. The

order, inter alia, terminated the parental rights of respondents with

respect to Sean H., Donna H. and Chloe H. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: In these consolidated appeals arising from

proceedings pursuant to Social Services Law § 384-b and Family Court

Act article 10, respondent mother and respondent father each appeal

from an order that, inter alia, terminated their parental rights on

the ground of permanent neglect with respect to their three older

children and freed those children for adoption. We affirm.

Contrary to the mother’s contention, we conclude that petitioner
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established by the requisite clear and convincing evidence that it

fulfilled its duty to exercise diligent efforts to encourage and

strengthen the parents’ relationships with the subject children during

the relevant time period (see Social Services Law § 384-b [7] [f];

Matter of Sheila G., 61 NY2d 368, 373). Specifically, petitioner’s

caseworker facilitated the parents’ supervised visitation with the

children, referred the parents to parenting and domestic violence

programs, arranged for preventative services, referred the parents to

mental health counseling and encouraged them to attend such

counseling, and conducted service plan reviews (see Matter of Sapphire

A.J. [Angelica J.], 122 AD3d 1296, 1297, lv denied 24 NY3d 916; Matter

of Jyashia RR. [John VV.], 92 AD3d 982, 983; Matter of Laelani B., 59

AD3d 880, 881). Further, when the mother stopped attending mental

health counseling, the caseworker suggested other facilities for the

mother to attend and encouraged her to reapply for Medicaid to obtain

coverage for the counseling, and when the father had trouble paying

for his counseling sessions, the caseworker referred him to another,

less expensive agency (see Matter of Carter A. [Courtney QQ.]., 121

AD3d 1217, 1218; Matter of Aldin H., 39 AD3d 914, 915). The

caseworker also encouraged the parents to comply with the stay-away

orders of protection that had been put in place because of the

volatile and violent nature of their relationship, and explained to

the parents that continuing to violate the orders of protection would

jeopardize their ability to have the children returned to their care

(see generally Carter A., 121 AD3d at 1219).

Contrary to the mother’s further contention, we conclude that the

court properly determined that she failed to plan for the future of

the children, although able to do so (see Sapphire A.J., 122 AD3d at

1297). The evidence established that the mother stopped attending

mental health counseling and failed to complete such counseling in the

manner recommended by petitioner (see Jyashia RR., 92 AD3d at 983;

Matter of Kyle K., 49 AD3d 1333, 1335, lv denied 10 NY3d 715). To the

extent that there was a discrepancy between the mother’s service plan

and the testimony of petitioner’s caseworkers on the issue whether the

mother had previously attended an approved facility for counseling, we

note that the court was entitled to credit the testimony of

petitioner’s caseworkers that the mother failed to complete counseling

at such a facility, particularly in light of the mother’s “failure to

testify at the fact-finding hearing” (Matter of Serenity P. [Shameka

P.], 74 AD3d 1855, 1855, quoting Matter of Nassau Dept. of Social

Servs. v Denise J., 87 NY2d 73, 79). Further, although the mother

participated in some of the services offered by petitioner, petitioner

established that she “did not successfully address or gain insight

into the problems that led to the removal of the child[ren] and

continued to prevent the child[ren]’s safe return” (Matter of Giovanni

K., 62 AD3d 1242, 1243, lv denied 12 NY3d 715; see Matter of Sophia

M.G.K. [Tracy G.K.], 132 AD3d 1377, 1378; Matter of Kyla E. [Stephanie

F.], 126 AD3d 1385, 1386, lv denied 25 NY3d 910). Indeed, although

the mother expressed a strong desire to end her relationship with the

father when initially interviewed by petitioner’s expert psychologist

and was warned by one of petitioner’s caseworkers that violating the

orders of protection would be detrimental to her interests, the

evidence established that the mother repeatedly violated the orders of
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protection to stay away from the father, the parents conceived another

child while the neglect proceedings were ongoing with respect to the

older children, and the parents were again living together at the time

of the fact-finding hearing (see Carter A., 121 AD3d at 1219; Matter

of Jayden J. [Johanna K.], 100 AD3d 1207, 1209, lv denied 20 NY3d

860). To the extent that the mother challenges the testimony of

petitioner’s psychologist, we reiterate that “it is well settled that

the court’s ‘determination regarding the credibility of witnesses is

entitled to great weight on appeal, and will not be disturbed if

supported by the record’ ” (Matter of Burke H. [Tiffany H.], 117 AD3d

1568, 1568; see Matter of Burke H. [Richard H.], 117 AD3d 1455, 1456). 

We conclude on this record that “the court properly credited the

psychologist’s report and opinion, which were based upon numerous

visits with the mother and an extensive review of documentation”

(Burke H. [Tiffany H.], 117 AD3d at 1569).

We reject the parents’ contentions that petitioner failed to meet

its burden of establishing by a preponderance of the evidence that

termination of their parental rights is in the best interests of the

three subject children (see Matter of Yasiel P. [Lisuan P.], 79 AD3d

1744, 1746, lv denied 16 NY3d 710). The record establishes that the

parents failed to complete their service plans and made inadequate

efforts to visit the subject children despite being able to do so (see

id.). We reject the mother’s further contention that termination of

the parents’ parental rights is not in the best interests of the

subject children because it will result in separation from their

younger sibling. “Although separation of siblings is not desirable,

it is sometimes necessary to serve their best interests” (Matter of S.

Children, 210 AD2d 175, 176, lv denied 85 NY2d 807; see Matter of

Malik M., 40 NY2d 840, 841; Matter of Joshua E.R. [Yolaine R.], 123

AD3d 723, 726; Matter of Alpacheta C., 41 AD3d 285, 286, lv denied 9

NY3d 812). Here, although the record establishes that the subject

children were bonded with the younger child, we note that the subject

children had already been living in foster care prior to the younger

child’s birth and have continued to do so thereafter. Indeed, the

evidence established that the subject children’s foster parent was an

appropriate preadoptive resource who had bonded with the subject

children, provided them with a structured environment, and integrated

them into his large, supportive family. The court’s determination

“that it was in the [subject] children’s best interests to be adopted

by the foster parent[] with whom they had lived for most of their

lives rather than to be returned to the [parents] is entitled to great

deference” (Sophia M.G.K., 132 AD3d at 1378; see Matter of Elijah D.

[Allison D.], 74 AD3d 1846, 1847), and we see no reason to disturb

that determination.

The father failed to preserve for our review his contention that

the court abused its discretion in not imposing a suspended judgment

(see Matter of Dakota H. [Danielle F.], 126 AD3d 1313, 1315, lv denied

25 NY3d 909; Matter of Atreyu G. [Jana M.], 91 AD3d 1342, 1343, lv

denied 19 NY3d 801). In any event, a suspended judgment was not

warranted under the circumstances inasmuch as “any ‘progress made by

[the father] in the months preceding the dispositional determination

was not sufficient to warrant any further prolongation of the
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[subject] child[ren]’s unsettled familial status’ ” (Matter of Donovan

W., 56 AD3d 1279, 1279, lv denied 11 NY3d 716).

Finally, on the mother’s prior appeal, we determined that the

court’s finding of derivative neglect with respect to the younger

child was supported by a preponderance of the evidence (Burke H.

[Tiffany H.], 117 AD3d at 1568; see Burke H. [Richard H.], 117 AD3d at

1455). That determination is the law of the case, which forecloses

the mother’s challenge to that finding in the instant appeal (see

Matter of Jeremy H. [Logann K.], 100 AD3d 518, 518-519; see generally

Matter of Yamilette M.G. [Marlene M.], 118 AD3d 698, 699, lv denied 24

NY3d 906).

Entered: December 31, 2015 Frances E. Cafarell

Clerk of the Court