In re Joseph ZZ.
Opinion of the Court
Appeals from two orders of the Family Court of St. Lawrence County (Nelson, J.), entered June 27, 1995 and August 25, 1995, which 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.
Respondent is the mother of a son, Joseph (born in 1988); the child’s father is unknown. On March 6, 1989 as the result of a preliminary removal order pursuant to Family Court Act § 1027, the child first came into the care and custody of petitioner. On November 1, 1993 petitioner commenced the instant proceedings to terminate respondent’s parental rights based upon allegations that the child was permanently neglected and that respondent was at that time and for the foreseeable future unable, by reason of mental illness, to provide proper and adequate care for the child. At the time of the filing of the petition, the child had been in foster care upwards of fifteen months. Thereafter, the court appointed Ralph Johns, the licensed chief psychologist of the local Community Mental Health Services, to evaluate the respondent. Johns met with
We affirm. Initially, we reject respondent’s contention that Family Court erred by failing to dismiss the permanent neglect petition based upon petitioner’s failure to affirmatively assert in the petition, in sufficient detail, their efforts to encourage and strengthen the parent-child relationship and to reunite the family. It is well settled that the agency bringing the petition to terminate parental rights must specify and affirmatively plead in detail the diligent efforts taken (see, Matter of Sheila G., 61 NY2d 368, 384; see also, Family Ct Act § 614 [1] [c]). Without sufficient allegations of the diligent efforts made by a petitioner, the court is without jurisdiction to find permanent neglect and, therefore, cannot make a disposition in the matter (see, Matter of Phillip Whitney B., 199 AD2d 1061). Although the better practice is that the allegations should be made in great detail, the failure to do so is not fatal where the details are established on the record at the hearing (see, Matter of Dixie Lu EE., 142 AD2d 747). Here, the petition alleged that petitioner: “made diligent efforts to encourage and strengthen the parental relationship in that petitioner has provided caseworker counseling; mental health referrals; homemaker services; visitation, supervised and unsupervised; parenting classes; parent aide; foster care services; volunteer transportation; and, day care. In addition respondent has been referred to or participated with UCP services; Early Intervention; Seaway House; and, CRC.” At the hearing, the child’s caseworker testified in detail about the various services provided and a number of exhibits detailing the services were also submitted. In our view, the proof adduced at the hearing substantially detailed and supported those efforts. Accordingly, we conclude that Family Court did not err in refusing to dismiss the inartfully drawn petition.
Here, the record supports the conclusion that respondent did not adequately plan for the child’s future. Despite her sporadic contact with the child and her acceptance of some of the services provided by petitioner, there was no real change in her ability to care for her child or to adequately provide for his future. Respondent’s life continued to be characterized by severe instability and stress regarding the care of the child, including a pattern of changing living arrangements and personal relationships, culminating in her 1994 move to Illinois. Although respondent did maintain contact with her child, she canceled visitations for various, often trivial, reasons and she also chose to delay home trial periods numerous times. When the home trial finally occurred, she was unable to handle the stress and the visit was terminated at her request. On one occasion, she left the child in the care of tbr- person living with her, who had been accused of sexually abusing the child, in violation of an order of protection. Additionally, respondent
Respondent, however, contends that the evidence on the record indicates that she did attempt to take some steps to plan for her child’s future. Specifically, she contends that she completed some of her assigned tasks, remained in counseling, accepted agency services and attended various programs recommended by petitioner. However, these efforts have not been sufficient and have not resulted in an improvement in respondent’s ability to plan for and care for her child. A parent must do more, including gaining insight into and an understanding of the problems and making progress toward changing behaviors that endanger the child (see, Matter of Society for Seamen’s Children v Shirley L., 224 AD2d 626, 627). Even where the parent attends therapy, the failure to make adequate therapeutic progress constitutes a failure to adequately plan for the child (see, id., at 627). Good faith efforts are not enough and evidence of an attempt to plan is not sufficient to negate a finding of permanent neglect for the failure to plan (see, Matter of Louise Wise Servs., 135 AD2d 385, 389). As Family Court found, respondent did not make the over-all and permanent changes that were required to provide a stable and safe home (see, Matter of Shannon U., 210 AD2d 752, 754, lv denied 85 NY2d 807). Where evidence of a parent’s lack of insight into her psychiatric problems and inability to adequately care for her child is overwhelming, termination is appropriate (see, Matter of Claudina Paradise Damaris B., 227 AD2d 135).
Finally, we reject respondent’s contention that petitioner’s proof of her mental illness was legally insufficient. Respondent’s assertion that Johns is not a qualified psychologist under Social Services Law § 384-b (6) (e), was not raised at the time of his appointment or at the hearing and, therefore, was not preserved for appellate review (see, Matter of Amanda R., 215 AD2d 220, 221, supra; see also, Matter of Dixie Lu EE., 142 AD2d 747, 748, supra). In any event, the record reveals that Johns is a qualified and experienced psychologist (see, Social Services Law § 384-b [6] [e]). No contradictory evidence was introduced.
It is well settled that for termination of parental rights by reason of mental illness the petitioner must establish that the parent was “presently and for the foreseeable future unable, by
Here, Johns, based on the results of the tests he administered, his review of respondent’s prior clinical records, his interviews with her and his years of clinical experience, diagnosed respondent as having a personality disorder not otherwise specified. In his opinion, this condition would most likely result in the neglect of a child left in her care in that it would affect her ability to parent the child by: (1) antagonism to recommendations made by people providing services; (2) antagonism to the people providing services; (3) stubbornness to the point of damaging the child; (4) lack of responsiveness to the child’s needs; (5) insufficient supervision of the child; (6) inconsistency in, as well as over, or under, disciplining the child; and (7) a marked decrease in ability to care for the child during times of stress. He also stated that this condition would most likely last into the foreseeable and indefinite future. Although Johns did not review the records of respondent’s most recent counseling sessions or prior hospitalization records, he stated that his prognosis would not have been different if he had; notably, respondent did not provide any evidence of substantial improvement as a result of recent counseling. Johns also noted that the available psychotherapy treatment for this disorder would not be successful in respondent’s situation because the nature of the disorder interferes with the therapy. In our view, the clear and convincing burden on petitioner was satisfied (see, Matter of Donald LL., 188 AD2d 899, 902).
Upon our review of all of the evidence in the record, we find no reason to disturb Family Court’s determination.
Cardona, P. J., Mercure, White and Peters, JJ., concur. Ordered that the orders are affirmed, without costs.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.