                         State of New York
                  Supreme Court, Appellate Division
                     Third Judicial Department
Decided and Entered:   October 22, 2015                516951
                                                       518825
________________________________

In the Matter of LANDON U.,
   Alleged to be a Neglected
   Child.

CORTLAND COUNTY DEPARTMENT OF
   SOCIAL SERVICES,
                    Respondent;

AMANDA U.,
                   Appellant.

(Proceeding No. 1.)
_______________________________

In the Matter of AMANDA U.,
                    Appellant,
      v
                                           MEMORANDUM AND ORDER
HOWARD U.,
                   Respondent.

(Proceeding No. 2.)
_______________________________

In the Matter of LANDON U.,
   Alleged to be a Permanently
   Neglected Child.

CORTLAND COUNTY DEPARTMENT OF
   SOCIAL SERVICES,
                    Respondent;

AMANDA U.,
                   Appellant.

(Proceeding No. 3.)
________________________________
                               -2-                516951
                                                  518825

Calendar Date:   September 8, 2015

Before:   McCarthy, J.P., Egan Jr., Rose and Clark, JJ.

                            __________


     A.L. Beth O'Connor, Cortland, for appellant.

      Kathleen A. Sullivan, Cortland County Department of Social
Services, Cortland, for Cortland County Department of Social
Services, respondent.

     Natalie B. Miner, Homer, attorney for the child.

                            __________


Clark, J.

      Appeals (1) from an order of the Family Court of Cortland
County (Campbell, J.), entered May 14, 2013, which dismissed
petitioner's application, in proceeding No. 2 pursuant to Family
Ct Act article 8, for an order of protection, (2) from two orders
of said court, entered May 31, 2013 and June 24, 2013, which,
among other things, granted petitioner's application, in
proceeding No. 1 pursuant to Family Ct Act article 10, to
adjudicate respondent's child to be neglected, and (3) from three
orders of said court, entered March 17, 2014 and March 25, 2014,
which, among other things, granted petitioner's application, in
proceeding No. 3 pursuant to Social Services Law § 384-b, to
adjudicate respondent's child to be permanently neglected, and
terminated respondent's parental rights.

      Amanda U. (hereinafter the mother) and respondent Howard U.
(hereinafter the father) are the divorced parents of Landon U.
(born in 2012). In August 2010, following proceedings in Broome
County, the mother was found to have neglected her two older
children from a prior relationship. On April 12, 2012, the day
of his birth, Landon (hereinafter the child) was taken into the
                              -3-                516951
                                                 518825

custody of petitioner Cortland County Department of Social
Services (hereinafter DSS). The next day, DSS filed a neglect
petition (proceeding No. 1), alleging that the mother
derivatively neglected the child on the basis of her prior
neglect of her two older children (born in 2009 and 2010), the
insufficiency of her participation with regard to services, and
her continuation in a violent and volatile relationship with the
father. Thereafter, the mother filed a family offense petition
against the father (proceeding No. 2), alleging that he was
harassing her with multiple phone calls and text messages. A
fact-finding hearing ensued, after which Family Court found that
the mother derivatively neglected the child and dismissed the
mother's family offense petition. The mother thereafter agreed
to continue custody of the child with a relative.1 Subsequently,
DSS filed a petition alleging that the mother permanently
neglected the child and, accordingly, sought the termination of
the mother's parental rights (proceeding No. 3). After a
fact-finding hearing, Family Court found that the mother
permanently neglected the child and, following the dispositional
hearing, determined that it was in the best interests of the
child to terminate the mother's parental rights. The mother
appeals from the orders finding that she neglected and




    1
        The mother properly appeals Family Court's June 24, 2013
fact-finding order regarding the court's finding of derivative
neglect (see Matter of Alyssa L. [Deborah K.], 93 AD3d 1083, 1085
[2012]). However, she cannot appeal from the court's order of
disposition as that order was entered upon consent (see Matter of
Na'Sir RR. [Devine RR.], 118 AD3d 1180, 1180-1181 [2014]).
Inasmuch as the mother has not moved to vacate the disposition or
withdraw her consent to the same and because no appeal lies from
an order issued on consent, her appeal from the May 31, 2013
dispositional order must be dismissed (see id.). The mother's
appeal from the permanency hearing order entered March 17, 2014
must also be dismissed (see Matter of Loraida R. [Lois S.], 97
AD3d 925, 926 n 2 [2012]; Matter of Kim OO. v Broome County Dept.
of Social Servs., 44 AD3d 1164, 1165 [2007]).
                               -4-                516951
                                                  518825

permanently neglected the child,2 as well as the order dismissing
the mother's family offense petition.3

      Based upon the record before us, we find that DSS met its
burden to establish that the mother derivatively neglected the
child. Evidence of the prior neglect of a child is admissible to
prove that the parent neglected another child (see Family Ct Act
§ 1046 [a] [i]), "but may not provide the sole basis for a
determination of derivative neglect unless the parent's past
conduct demonstrates [profound] fundamental flaws in the
[parent's] understanding of the duties of parenthood" such that
there is a substantial risk of harm for any child left in that
parent's care (Matter of Alexander Z. [Melissa Z.], 129 AD3d
1160, 1163 [2015] [internal quotation marks omitted], lv denied
25 NY3d 914 [2015]; see Matter of Brad I. [Brad J.], 117 AD3d
1242, 1243–1244 [2014]). Additionally, "the prior neglect
determination [must be] sufficiently proximate in time to
reasonably conclude that the problematic conditions continue to
exist" (Matter of Tradale CC., 52 AD3d 900, 901 [2008]; accord
Matter of Neveah AA. [Alia CC.], 124 AD3d 938, 939 [2015]; see
Matter of Xiomara D. [Madelyn D.], 96 AD3d 1239, 1240 [2012]).

      Here, during the fact-finding hearing in the neglect
proceeding, Family Court took judicial notice of an August 2010
order in which the mother was adjudged to have neglected her two
older children due to violently shaking the oldest child and
failing to seek medical attention for him. As a result, that
child sustained a subdural hemotoma and now suffers from extreme
cognitive delays and other related complications. These children


     2
        The mother also attempts to appeal from four decisions
of Family Court that relate to the findings of neglect and
permanent neglect; two dated May 14, 2013, one dated February 10,
2014 and one dated February 20, 2014. However, no appeal may be
taken from decisions (see Family Ct Act § 1112; CPLR 5702).
     3
        The father, who was also the subject of a neglect
proceeding, voluntarily surrendered his parental rights to the
child and has not participated in the instant appeal.
                              -5-                516951
                                                 518825

have been in foster care in Broome County since August 2010.
Given the level of impairment of parental judgment that the
mother demonstrated previously, we find the nearly two-year gap
in time between the prior finding of neglect and the instant
proceeding proximate enough to support a finding of derivative
neglect (see e.g. Matter of Ilonni I. [Benjamin K.], 119 AD3d
997, 997-998 [2014], lv denied 24 NY3d 914 [2015]; Matter of
Paige WW. [Charles XX.], 71 AD3d 1200, 1203 [2010]).

      Furthermore, additional evidence also demonstrated that the
mother failed to cure or adequately address, despite the
availability of services – parenting classes, domestic violence
services and mental health counseling, among others – the earlier
identified deficiencies in her parenting skills that created a
substantial risk of harm to the child. Tellingly, the mother had
yet to progress to unsupervised visitations with the older
children for a number of reasons. Testimony from a variety of
witnesses also revealed that the relationship between the mother
and father was volatile and rife with physical abuse, verbal
abuse and many dueling orders of protection. The mother herself
described the relationship as unhealthy. Despite this, the
mother testified that she was trying to work through her
relationship with the father and had continued in a violent and
volatile relationship with him during the period of time before
the child's birth (see Matter of Hailey XX. [Angel XX.], 127 AD3d
1266, 1268 [2015]). Thus, Family Court's determination that the
mother derivatively neglected the child was supported by a
preponderance of the evidence (see Matter of Alexander Z.
[Melissa Z.], 129 AD3d at 1164; Matter of Sumaria D. [Madelyn
D.], 121 AD3d 1203, 1205-1206 [2014]; Matter of Xiomara D.
[Madelyn D.], 96 AD3d at 1240-1241).

      Next, Social Services Law § 384-b (7) (a) defines a
permanently neglected child as a child who is in the care of an
authorized agency and whose parent has failed, for a period of
more than one year following the date such child came into the
care of an authorized agency, substantially and continuously or
repeatedly to maintain contact with or plan for the future of the
child, although physically and financially able to do so,
notwithstanding the agency's diligent efforts to encourage and
                              -6-                516951
                                                 518825

strengthen the parental relationship (see Matter of Star Leslie
W., 63 NY2d 136, 140 [1984]). Contrary to the position set forth
by the mother on appeal, we find Family Court's threshold
determination of diligent efforts to be supported by the record.
Specifically, at the fact-finding hearing, the testimony
established that, in addition to facilitating regular visitation
with the mother and child aimed towards the goal of reunification
– both supervised and monitored within the mother's home – DSS
offered numerous services including, but not limited to,
parenting support, domestic violence counseling, mental health
counseling, anger management, drug and alcohol abuse and
nutritional eating.   In addition, the mother's caseworkers were
frequently in contact with her to ensure compliance with services
and monitor her progress. Inasmuch as these efforts were
"designed to address the problems that led to the child's
removal, and to 'strengthen the family relationship by such means
as assisting the parent with visitation, providing information on
the child's progress and development, and offering counseling and
other appropriate educational and therapeutic programs and
services'" (Matter of Everett H. [Nicole H.], 129 AD3d 1123, 1125
[2015], quoting Matter of Carter A. [Courtney QQ.], 121 AD3d
1217, 1218 [2014]), Family Court did not err in its determination
that DSS established, by clear and convincing evidence, that it
made diligent efforts to encourage and strengthen the mother's
relationship with the subject child (see Matter of Kapreece SS.
[Latasha SS.], 128 AD3d 1114, 1115 [2015], lv denied 26 NY3d 903
[2015]; Matter of Aniya L. [Samantha L.], 124 AD3d 1001,
1002-1003 [2015], lv denied 25 NY3d 904 [2015]; Matter of Angelo
AA. [Tashina DD.], 123 AD3d 1247, 1247-1249 [2014]).

      Therefore, we now turn to the second of the two-part
inquiry, namely, whether the mother substantially planned for the
child's future (see Matter of Lawrence KK. [Lawrence LL.], 72
AD3d 1233, 1234 [2010], lv denied 14 NY3d 713 [2010]; Matter of
Laelani B., 59 AD3d 880, 881-882 [2009]), and we find that,
notwithstanding DSS's diligent efforts, the record supports
Family Court's determination of permanent neglect. To
substantially plan, a parent must, at a minimum, take meaningful
steps to correct the conditions that led to the child's initial
removal from the home (see Matter of Nathaniel T., 67 NY2d 838,
                              -7-                516951
                                                 518825

840 [1986]; Matter of Alaina E., 59 AD3d 882, 885 [2009], lv
denied 12 NY3d 710 [2009]). During the relevant fact-finding
hearing, the mother refused to take responsibility for the
injuries caused to the child that she had violently shaken, the
act which arguably led to the removal of the older children in
the first instance (see Matter of Samuel DD. [Margaret DD.], 123
AD3d 1159, 1162 [2014], lv denied 24 NY3d 918 [2015]; Matter of
Asianna NN. [Kansinya OO.], 119 AD3d 1243, 1247-1248 [2014], lv
denied 24 NY3d 907 [2014]). Further, while it is beyond dispute
that the mother participated in a number of the services made
available to her, the record before us demonstrates that she
failed to benefit from them and, as such, failed to successfully
plan for the future of the child (see Matter of Aniya L.
[Samantha L.], 124 AD3d at 1004). Moreover, the record further
reveals the mother's continued involvement with men – the father,
as well as others – who are not safe for her and her children to
be around (see Matter of Angelo AA. [Tashina DD.], 123 AD3d at
1249). Accordingly, DSS met its burden of proving by clear and
convincing evidence that the mother failed to substantially plan
for the child's future and, thus, permanently neglected him.

      As to disposition, we are unpersuaded that Family Court
should have granted a suspended judgment in lieu of terminating
respondent's parental rights. "'Following an adjudication of
permanent neglect, the sole concern at a dispositional hearing is
the best interests of the child and there is no presumption that
any particular disposition, including the return of a child to a
parent, promotes such interests'" (Matter of Johanna M. [John
L.], 103 AD3d 949, 951 [2013], lv denied 21 NY3d 855 [2013],
quoting Matter of Angelica VV., 53 AD3d 732, 733 [2008]; accord
Matter of Asianna NN. [Kansinya OO.], 119 AD3d at 1248; see
Family Ct Act § 631). Here, the child has been in foster care
with the same foster parent since he was only two months old. As
could be expected, the child has developed a strong and loving
bond with his foster family. Additionally, unlike the mother's
home, the record demonstrates that the home provided by the
child's foster parent is a safe environment free of domestic
violence. Thus, based upon the record as a whole, Family Court's
decision to terminate the mother's parental rights instead of
ordering a suspended judgment was not an abuse of discretion (see
                              -8-                  516951
                                                   518825

Matter of Madalynn I. [Katelynn J.], 111 AD3d 1205, 1207 [2013];
Matter of Alysheionna HH. [Tara II.], 101 AD3d 1413, 1415 [2012],
lv denied 20 NY3d 861 [2013]; Matter of Hannah T. [Joshua U.], 95
AD3d 1609, 1611 [2012], lv denied 19 NY3d 813 [2012]).

      The remaining issues have been considered and have been
found to be without merit.

     McCarthy, J.P., Egan Jr. and Rose, JJ., concur.



      ORDERED that the appeals from the orders entered May 31,
2013 and March 17, 2014 are dismissed, without costs.

      ORDERED that the remaining orders are affirmed, without
costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
