Luverna J., Respondent-Appellant.  (Appeal No. 1.) v. <<

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of KRYSTAL J. Erie County Department of Social Services, Petitioner-Respondent; Luverna J., Respondent-Appellant.  (Appeal No. 1.)

Decided: December 30, 1999

PRESENT:  PINE, J.P., HAYES, WISNER, PIGOTT, JR., and SCUDDER, JJ. Michael M. Metzger, Hamburg, for respondent-appellant. Gary J. Wojtan, Cheektowaga, for petitioner-respondent. Charles D. Halvorsen, Buffalo, Law Guardian.

 Respondent appeals from an order of disposition that terminated her parental rights with respect to her daughter Krystal, born October 13, 1993, and transferred custody to petitioner, Erie County Department of Social Services (DSS), upon a finding that Krystal was permanently neglected by respondent.   Family Court's determination that Krystal was permanently neglected by respondent is supported by clear and convincing evidence.   The record establishes that DSS made diligent efforts to encourage and strengthen the relationship between respondent and Krystal (see, Social Services Law § 384-b [7][a] ) by providing “services and other assistance aimed at ameliorating or resolving the problems preventing [Krystal's] return to respondent's care” (Matter of Kayte M., 201 A.D.2d 835, 608 N.Y.S.2d 711, lv. denied 83 N.Y.2d 757, 614 N.Y.S.2d 386, 637 N.E.2d 277;  see, Matter of Michelle F., 222 A.D.2d 747, 748-749, 635 N.Y.S.2d 709).   DSS established that respondent failed to maintain adequate housing, undergo a psychological evaluation, or participate in programs that she was required to attend (see, Matter of Peter D., 262 A.D.2d 998, 692 N.Y.S.2d 546;  Matter of Female J., 202 A.D.2d 340, 609 N.Y.S.2d 595).  “Because she failed to make any progress in overcoming the problems that initially endangered the child[ ] and continued to prevent [her] safe return, the court properly found that respondent was unable to make an adequate plan for her child[ ]'s future” (Matter of Rebecca D., 222 A.D.2d 1092, 635 N.Y.S.2d 847).

 Respondent also appeals from an order finding that her daughter Aaliyah is a neglected child.   Aaliyah was born on May 19, 1998, a few days after the conclusion of the fact-finding hearing on the permanent neglect petition concerning Krystal.   DSS immediately filed a neglect petition after her birth.   We conclude that the evidence at the fact-finding hearing on the neglect petition is sufficient to support the court's finding that Aaliyah's “physical, mental or emotional condition * * * is in imminent danger of becoming impaired” (Family Ct. Act § 1012[f][i] ).   The court properly relied upon the proof of neglect with respect to Krystal (see, Family Ct. Act § 1046 [a][i];  Matter of Nassau County Dept. of Social Servs. v. Denise J., 87 N.Y.2d 73, 80, 637 N.Y.S.2d 666, 661 N.E.2d 138).   The derivative finding of neglect with respect to Aaliyah was proper, based on respondent's failure to address the problems that led to the finding of neglect with respect to Krystal (see, Matter of Daequan FF., 243 A.D.2d 922, 923, 663 N.Y.S.2d 400;  cf., Matter of Ronald M., 254 A.D.2d 838, 839, 677 N.Y.S.2d 839).

Order unanimously affirmed without costs.