Angela E., Respondent-Appellant. v. << (2004)

 Respondent appeals from an order adjudicating her daughter a permanently neglected child and transferring guardianship and custody rights to petitioner.   We note at the outset that respondent stipulated to the finding of permanent neglect by Family Court and thus is not aggrieved by that finding (see Matter of Cherilyn P., 192 A.D.2d 1084, 596 N.Y.S.2d 233, lv. denied 82 N.Y.2d 652, 601 N.Y.S.2d 582, 619 N.E.2d 660;  CPLR 5511).   We further conclude that the evidence supports the court's determination that the termination of respondent's parental rights is in the best interests of the child (see Family Ct. Act § 631).   The court noted that respondent's chronic substance abuse problem led to removal of the child from the home and that respondent failed to take corrective measures with respect thereto (see Matter of Lynn M.W., 278 A.D.2d 901, 718 N.Y.S.2d 549;  see also Matter of Shanequia P., 302 A.D.2d 890, 754 N.Y.S.2d 501).

It is hereby ORDERED that said appeal from the order insofar as it concerned the finding of permanent neglect be and the same hereby is dismissed and the order is affirmed without costs.

I respectfully dissent.   Family Court abused its discretion in terminating respondent's parental rights based solely upon respondent's admitted failure to abstain completely from the use of marihuana.   It is undisputed that respondent satisfied virtually every other requirement contained in the contract and plan for services that was designed to prepare her to be reunited with the child.   Respondent maintained visitation with the child, completed a psychological evaluation, mental health counseling, parenting classes and an anger management program, and secured a source of income and suitable housing.   On her own initiative, respondent enrolled in an inpatient substance abuse program.   She withdrew from that program because of medical problems and enrolled herself in an outpatient program within two days.   This is clearly not a case of “ an uncooperative or indifferent parent” (Matter of Star Leslie W., 63 N.Y.2d 136, 144, 481 N.Y.S.2d 26, 470 N.E.2d 824;  cf. Matter of Karina U., 299 A.D.2d 772, 772-773, 751 N.Y.S.2d 114, lv. denied 100 N.Y.2d 501, 760 N.Y.S.2d 764, 790 N.E.2d 1193), or one who is unable or unwilling to confront the problems leading to the child's removal (cf. Matter of Travis Devon B., 295 A.D.2d 205, 743 N.Y.S.2d 498).   Instead, the record establishes that respondent made significant strides toward resolving the problems that resulted in the finding of permanent neglect (see Matter of Zachary CC., 301 A.D.2d 714, 715, 753 N.Y.S.2d 561;  Matter of Lisa Z., 278 A.D.2d 674, 679, 717 N.Y.S.2d 730;  Matter of Jelissa Ninette O., 233 A.D.2d 874, 875, 649 N.Y.S.2d 613;  Matter of Society for Seamen's Children v. Jennifer J., 208 A.D.2d 849, 617 N.Y.S.2d 843).   Further, respondent made such progress despite the lack of diligent efforts on petitioner's part to assist respondent in obtaining substance abuse treatment appropriate to her needs.   Given respondent's progress, the court should have granted a suspended judgment, a “brief grace period” permitting respondent an opportunity to overcome the only remaining obstacle to the child's safe return to her custody (Matter of Michael B., 80 N.Y.2d 299, 311, 590 N.Y.S.2d 60, 604 N.E.2d 122;  see Zachary CC., 301 A.D.2d at 715, 753 N.Y.S.2d 561;   Jelissa Ninette O., 233 A.D.2d at 875, 649 N.Y.S.2d 613;  Society for Seamen's Children, 208 A.D.2d at 849-850, 617 N.Y.S.2d 843).   That obstacle, respondent's addiction to marihuana, has long been recognized as a disease (see Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 8 L.Ed.2d 758;  People v. Shepard, 50 N.Y.2d 640, 646-647, 431 N.Y.S.2d 363, 409 N.E.2d 840 [Gabrielli, J., concurring] ).   Petitioner presented no proof that treatment of that disease would not be successful or that respondent's prognosis for recovery is poor (cf. Matter of Jolie S., 298 A.D.2d 194, 195, 748 N.Y.S.2d 367;  Matter of Kelly G., 223 A.D.2d 878, 880, 636 N.Y.S.2d 225, lv. denied 88 N.Y.2d 801, 644 N.Y.S.2d 493, 666 N.E.2d 1366).   Moreover, petitioner failed to present proof that termination of respondent's parental rights is otherwise in the child's best interests.   The foster parent does not intend to adopt the child, and there is no indication that any specific preadoptive placement was contemplated at the time of the hearing (see Zachary CC., 301 A.D.2d at 715, 753 N.Y.S.2d 561;  Jelissa Ninette O., 233 A.D.2d at 875, 649 N.Y.S.2d 613;  cf. Karina U., 299 A.D.2d at 773, 751 N.Y.S.2d 114;  Travis Devon B., 295 A.D.2d at 205, 743 N.Y.S.2d 498).   Under those circumstances, I cannot agree with the majority that it is in the child's best interests to terminate the rights of a concerned parent in favor of an uncertain future for the child.   Because petitioner failed to meet its burden of establishing that termination of respondent's parental rights is in the best interests of the child, I would reverse the order and remit the matter to Family Court for a new dispositional hearing (see Matter of Hannah D., 292 A.D.2d 867, 867-868, 740 N.Y.S.2d 537;  Matter of Princess C., 279 A.D.2d 825, 828, 718 N.Y.S.2d 737;  Matter of Jasmine H., 270 A.D.2d 950, 704 N.Y.S.2d 772).

MEMORANDUM: