                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 24, 2014                     516237
________________________________

In the Matter of ASIANNA NN.
   and Another, Alleged to be
   Permanently Neglected
   Children.
                                            MEMORANDUM AND ORDER
ALBANY COUNTY DEPARTMENT OF
   CHILDREN, YOUTH AND
   FAMILIES,
                    Respondent;

KANSINYA OO.,
                    Appellant.
________________________________


Calendar Date:   May 27, 2014

Before:   Lahtinen, J.P., McCarthy, Garry, Lynch and Clark, JJ.

                             __________


     Sandra M. Colatosti, Albany, for appellant.

      James J. Green, Albany County Department of Children, Youth
and Families, Albany, for respondent.

     Carol R. Stiglmeier, Albany, attorney for the children.

      Gleason, Dunn, Walsh & O'Shea, Albany (Brendan C. O'Shea of
counsel), for Gail W., intervenor.

     Nancy E. Stroud, Latham, for Christine OO. and Andrew OO.

                             __________
                              -2-                516237

Garry, J.

      Appeals (1) from an order of the Family Court of Albany
County (M. Walsh, J.), entered March 26, 2012, which granted
petitioner's application, in a proceeding pursuant to Social
Services Law § 384-b, to adjudicate respondent's children to be
permanently neglected, (2) from an order of said court, entered
January 3, 2013, which terminated respondent's parental rights,
and (3) from an amended order of said court, entered May 16,
2013, which, among other things, granted petitioner's motion to
modify the prior order of disposition by committing the care,
custody and guardianship of Asianna NN. to her maternal
grandparents.

      Respondent is the mother of two children (born in 2005 and
2006). In September 2007, the maternal grandparents arrived at
respondent's home in mid-afternoon, immediately noticed that
something was wrong with the younger child – then 11 months old –
and took her to the hospital. The child was admitted in critical
condition with bilateral subdural hematomas, retinal hemorrhaging
and other injuries that, according to the treating medical
providers, indicated shaken baby syndrome and blunt force trauma.
Petitioner's caseworker later testified that the child had
"obvious" injuries, with extensive bruises on her face and
abdomen and dried blood on her ears. Respondent maintained,
however, that she had noticed nothing wrong with the child while
caring for her earlier that day other than a fever; she said that
she did not know how the child was injured and could not think of
anyone who might have harmed her.1 Respondent's paramour
ultimately admitted that he had spent the night in the apartment
and had violently shaken the child early that morning.

      Petitioner commenced proceedings pursuant to Family Ct Act
article 10 to adjudicate both of respondent's children to be


    1
        Respondent initially said that she had taken the child to
a hospital that morning for treatment of the fever, but when it
was later determined that there were no records of such
treatment, admitted that this claim was not true. She further
claimed that the child's bruises resulted from a fall from a bed.
                              -3-                516237

abused based on her failure to protect them from the paramour and
to seek medical attention for the younger child. Upon
respondent's consent, the children were temporarily removed and
placed in petitioner's care and custody. The temporary order of
removal was later modified to place the older child in the
custody of the maternal grandparents, where she still remains.
The younger child was hospitalized for several weeks in a
pediatric intensive care unit, transferred to a rehabilitation
facility and, after several months, placed in the pre-adoptive
foster home where she now resides. She is diagnosed with a
traumatic brain injury and continues to suffer from one-sided
paralysis, cognitive deficits and other long-term consequences of
the assault.

      Following a joint trial, the paramour was convicted in
early 2009 of reckless assault of a child; respondent was
convicted of endangering the welfare of a child and sentenced in
March 2009 to a one year jail term. Shortly thereafter, Family
Court adjudicated both children to be abused pursuant to
respondent's consent without admission. In August 2009, while
respondent was serving her sentence, petitioner commenced this
permanent neglect proceeding. Following respondent's release in
November 2009, a fact-finding hearing was held on multiple days
between May 2010 and February 2011. In March 2012, Family Court
adjudicated both children to be permanently neglected; following
a dispositional hearing, the court terminated respondent's
parental rights and placed both children in petitioner's custody.
Petitioner subsequently moved to modify the order of disposition
to commit the custody and guardianship of the older child to the
maternal grandparents, and this motion was granted. Respondent
appeals from the order of fact-finding and the order and amended
order of disposition.

      Contrary to respondent's assertion, the record demonstrates
that petitioner exercised the requisite diligent efforts to
encourage and strengthen her relationship with the children (see
Social Services Law § 384-b [7]; Matter of Star Leslie W., 63
NY2d 136, 142 [1984]). Respondent concedes that petitioner
offered her a range of rehabilitative services, including, among
other things, preventive services, domestic violence counseling
and visitation assistance; however, she asserts that these
                              -4-                516237

services were inadequately goal-specific and did not satisfy
petitioner's duty to provide services particularly tailored to
"ameliorate the problems preventing discharge of the child[ren]
to [her] care" (Matter of Hailey ZZ. [Ricky ZZ.], 19 NY3d 422,
429 [2012] [internal quotation marks and citation omitted]).
Petitioner counters that its inability to obtain more
individualized recommendations was the direct consequence of
respondent's delay in undergoing a recommended psychological
evaluation and family assessment. Petitioner's caseworker
testified that such an assessment was required to identify mental
health issues that might have contributed to respondent's initial
failure to seek medical treatment and her alleged ongoing failure
thereafter to recognize the severity of the child's condition and
accept responsibility for her role in causing her injuries. The
record confirms that for more than a year, petitioner repeatedly
offered to arrange the assessment, explained the need for it and
advised respondent that her refusal to participate was hindering
reunification with her children; respondent nevertheless refused
to cooperate on the ground that her defense counsel had advised
her not to do so until the criminal prosecution was resolved.
Following her conviction in 2009, respondent did undergo the
evaluation, but was then incarcerated almost immediately
thereafter. Petitioner was not required to provide
rehabilitative services while respondent was incarcerated (see
Social Services Law § 384-b [7] [f] [3]; Matter of Havyn PP.
[Morianna RR.], 94 AD3d 1359, 1361 [2012]; Matter of Kaiden AA.
[John BB.], 81 AD3d 1209, 1210 [2011]). In view of the broad
range of services that petitioner provided, together with
respondent's resistance to the mental health evaluation, we find
no error in Family Court's determination that petitioner
satisfied its statutory duty (see generally Matter of Sheila G.,
61 NY2d 368, 385 [1984]).

      Respondent next contends that petitioner did not prove by
clear and convincing evidence that she "failed 'substantially and
continuously or repeatedly to maintain contact with or plan for
the future of the child[ren]'" (Matter of James J. [James K.], 97
AD3d 936, 938 [2012], quoting Social Services Law § 384-b [7]
[a]). It is uncontroverted that respondent has maintained an
affectionate bond with both children, visiting them consistently
and as frequently as she was permitted to do so. However, a
                              -5-                516237

finding of permanent neglect may be based on either a showing of
a failure to plan or to maintain contact; merely maintaining
contact may not suffice (see Matter of Chorus SS. [Elatisha SS.],
93 AD3d 1097, 1098 [2012], lv denied 19 NY3d 807 [2012]; Matter
of Jyashia RR. [John VV.], 92 AD3d 982, 984 [2012]). Here,
petitioner contends that respondent failed to plan for her
children's future by, among other things, delaying the
psychological evaluation, failing to meaningfully engage in all
of the services offered to her and, most significantly, failing
to take responsibility for and gain insight into the problems
that led to the children's removal and thereafter prevented their
return.

      In this regard, respondent contends that her delay in
undergoing the psychological assessment should not have counted
against her, as she was exercising her constitutional privilege
against self-incrimination. This privilege applies in Family
Court proceedings, but does not permit a general refusal to
answer all inquiries, and may be asserted only if "a direct
answer by the witness confronts him or her with a substantial and
real danger of criminal prosecution" (Matter of Ashley M., 256
AD2d 825, 826 [1998]; see Matter of Gladys H., 235 AD2d 841, 842
[1997]). Here, respondent was indisputably confronted with an
ongoing criminal prosecution, and, as the assessment was intended
to result in a report to petitioner, respondent's communications
would not have been protected by the evidentiary privilege
applicable in confidential therapeutic settings (see generally
State of New York v General Elec. Co., 201 AD2d 802, 803 [1994];
compare Matter of Ashley M., 256 AD2d at 826). It was not
clearly established, however, that respondent's participation in
the assessment would necessarily have required prejudicial
admissions. The psychologist who ultimately conducted the
assessment testified that his purpose in such inquiries was to
assess the need for services, and not to determine culpability;
as such, he stated that he avoided "legal issues" and did not
challenge the parent's presentation of events or press for
factual details. Further, even when properly asserted, a
parent's exercise of the privilege in Family Court permits the
trier of fact to draw the strongest negative inference supported
by the evidence (see Matter of Michael U. [Marcus U.], 110 AD3d
821, 823 [2013]; Matter of Rauss v Johnson, 243 AD2d 849, 850
                              -6-                516237

[1997]). Finally, as the expeditious resolution of proceedings
involving the welfare of children is strongly favored, parents'
rights in this setting are deemed subordinate to the purpose of
protecting children, for which Family Ct Act article 10 was
enacted (see Family Ct Act § 1049; Matter of Joseph DD., 300 AD2d
760, 766 [2002], lv denied 100 NY2d 504 [2003]). Accordingly, in
considering these factors upon review, we find no abuse of
discretion in Family Court's determination that, by refusing to
participate in the assessment for more than a year, respondent
placed her own needs ahead of those of her children in a manner
that constituted a failure to plan for their future (see
generally Matter of Emily I., 50 AD3d 1181, 1181-1182 [2008], lv
denied 10 NY3d 712 [2008]; Matter of Germaine B., 86 AD2d 847,
848 [1982]).

      As respondent argues, the record reveals that she has
engaged in some of the services offered and, as noted above, she
has been quite consistent with visitation. However, even with
committed contact, a parent's ongoing refusal or inability to
acknowledge and correct conditions that required the children's
removal in the first instance may be deemed to constitute a
failure to plan for their future (see Matter of Alysheionna HH.
[Tara II.], 101 AD3d 1413, 1415 [2012], lv denied 20 NY3d 861
[2013]; Matter of Tailer Q. [Melody Q.], 86 AD3d 673, 674
[2011]). In the course of planning for respondent's safe
reunification with her children, petitioner repeatedly encouraged
her to acknowledge her responsibility for the younger child's
injuries, in that she allowed the paramour – whom she knew to
have serious anger management issues – to have contact with the
child, and then failed to seek immediate medical attention for
her. Respondent steadfastly refused to admit responsibility for
such wrongdoing. Even at the time of the fact-finding hearing –
three years after the children were removed – respondent
continued to deny that she had failed to seek timely medical
attention for the child, insisting that she had taken her to the
hospital within minutes after noticing that "[s]he was limp and
her eyes were kind of rolling back in her head," and offering no
adequate explanation as to how she had failed to notice this
condition earlier in the day, in the course of feeding and caring
for the child.
                              -7-                516237

      The record further demonstrates an ongoing tendency on
respondent's part to deny or minimize the seriousness of the
younger child's condition. Upon admission, the child's injuries
were so severe that she was near death, could no longer walk or
crawl, had lost the ability to swallow and suck, and was fed
through a tube; she recovered only gradually and continues to
suffer serious long-term deficits. In the months following the
assault, respondent told providers that the child could do things
that she was not able to do, such as sitting independently and
eating solid foods. While the child was still being tube-fed,
respondent fed her a hard cookie, and told a caseworker that she
had also given her chips. Despite meetings with the child's
medical providers to explain her medical condition, respondent
failed to understand why this conduct was a problem. Taken as a
whole, we thus find that clear and convincing record evidence
supports Family Court's conclusion that respondent failed to
substantially plan for the children's future in that she did not
"take meaningful steps toward alleviating the conditions that led
to the children's removal from their home in the first instance"
(Matter of Neal TT. [Deborah UU.], 97 AD3d 869, 871 [2012]
[internal quotation marks and citations omitted]; see Matter of
Kayden E. [Luis E.], 111 AD3d 1094, 1097 [2013], lv denied 22
NY3d 862 [2014]; Matter of Alysheionna HH. [Tara II.], 101 AD3d
at 1414-1415; Matter of Vivian OO., 34 AD3d 1111, 1114 [2006], lv
denied 8 NY3d 808 [2007]).

      Finally, respondent contends that her request for a
suspended judgment should have been granted. "'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]; see Family Ct Act § 631). With
regard to the younger child, the record reveals ongoing concerns
relative to respondent's judgment and ability to meet the child's
substantial and complex special needs. In contrast, the
testimony established that the foster mother, who had cared for
the younger child during the course of the several years
following her release from the rehabilitation facility, excelled
                              -8-                516237

in understanding and meeting the child's needs. She had
undergone many hours of training, coordinated the younger child's
complicated schedule of multiple appointments with medical
providers and therapists, and acted as an independent advocate by
seeking out additional beneficial services, such as orthopedic
treatment at Shriner's Hospital in Massachusetts. By all
accounts, strong and loving bonds exist between the younger child
and the foster mother, as well as other children in the foster
home, where the child has spent almost all of her life. Given
this bond, the foster mother's demonstrated competence, and her
desire to adopt the younger child, we find a sound and
substantial basis in the record for Family Court's determination
that it was in the younger child's best interests to free her for
adoption (see Matter of Angelina Jessie Pierre L. [Anne Elizabeth
Pierre L.], 114 AD3d 471, 472 [2014], lv denied 23 NY3d 901
[2014]).2


    2
        We note with considerable concern, however, that it
appears that petitioner may be imposing a blanket prohibition
against unsupervised visitation during the course of termination
proceedings. The instant proceeding was quite protracted; the
fact-finding hearing consumed almost a year, and an additional 13
months ensued thereafter before Family Court rendered its written
decision (apparently resulting, at least in part, from a
transcript problem). Additional time was then required for the
dispositional phase, resulting in the passage of more than 3½
years before the permanent neglect proceeding was complete.
Consequently, several years passed during which respondent had no
unsupervised contact with either child, and was prevented from
demonstrating whether she was capable of parenting them, while
the children's bonds with her weakened and their relationships
with their substitute caretakers deepened. The permanency
reports repeatedly acknowledge that the children could not be
returned to respondent unless she could care for them
independently, but that her ability in this regard could not be
determined because she had no unsupervised contact. It cannot be
overlooked that these circumstances may have contributed to the
result – particularly as to the younger child, with whom
respondent was allowed only limited contact (see generally Matter
of Joseph DD., 300 AD2d at 766).
                              -9-                516237

      We cannot make the same finding with regard to the older
child. The dispositional proceedings focused almost exclusively
on the younger child's needs and the relative abilities of
respondent and the foster mother to satisfy them; the older child
was only rarely mentioned in the course of the proceedings, and
her best interests were not adequately addressed. There was no
testimony as to whether this child, attending kindergarten at the
time of the dispositional hearing, had needs that respondent
could not fulfill or that the grandparents were better able to
satisfy. Moreover, unlike the younger child, the older child has
lived with respondent's close-knit family throughout the
proceedings and thus had frequent – albeit supervised – contact
with respondent. Given this close contact, it was not shown that
this child's stay outside respondent's custody had so damaged or
weakened the parent/child relationship that it was in her best
interests to sever it. On the contrary, the maternal grandmother
testified without contradiction that respondent saw the older
child almost daily, took on a parenting role when they were
together and that the two enjoyed each other's company and had a
close, loving mother/child relationship.

      Respondent's request for a suspended judgment may serve the
older child's best interests by offering respondent an
opportunity to increase their unsupervised contact and
demonstrate whether she is capable of caring for the child (see
Family Ct Act §§ 631 [b]; 633). However, the scant record
evidence pertaining to the older child prevents this Court from
making that determination (compare Matter of Arianna I. [Roger
I.], 100 AD3d 1281, 1283-1284 [2012]; Matter of Eric G., 59 AD3d
785, 788 [2009]). Therefore, despite our reluctance to add
further delay to the already lengthy period during which this
child has lived without permanency, we reverse the orders of
disposition insofar as they pertain to the older child, and remit
for a new dispositional hearing to address her best interests
(see Matter of Krystal B. [Thomas B.], 77 AD3d 1110, 1111
[2010]).3


    3
        At the time of entry of the modified order of
disposition, the maternal grandparents intended to commence
adoption proceedings within six months. This Court thereafter
                              -10-                 516237

     Lahtinen, J.P., McCarthy, Lynch and Clark, JJ., concur.



      ORDERED that the order entered March 26, 2012 is affirmed,
without costs.

      ORDERED that the order entered January 3, 2013 and the
amended order entered May 16, 2013 are modified, on the law,
without costs, by reversing so much thereof as terminated
respondent's parental rights as to Asianna NN. and as awarded the
care, custody and guardianship of Asianna NN. to her maternal
grandparents; matter remitted to the Family Court of Albany
County for further proceedings not inconsistent with this Court's
decision and, pending said proceedings, the terms of the amended
order entered May 16, 2013 that awarded care, custody and
guardianship of Asianna NN. to the maternal grandparents shall
remain in effect on a temporary basis; and, as so modified,
affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court




stayed the entry of any final order of adoption pending the
completion of this appeal.
