        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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                                           CAF 14-00250, CAF 14-00289

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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                                           CAF 14-00250, CAF 14-00289

[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
