IN RE: ANTOINETTE M. and Another

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

IN RE: ANTOINETTE M. and Another, Dependent Children Under the Age of Eighteen Years, etc., Lillie C., Respondent-Respondent, Catholic Home Bureau, Petitioner-Respondent. Monica Drinane, Esq., Appellant.

Decided: June 28, 2005

MAZZARELLI, J.P., ELLERIN, NARDELLI, WILLIAMS, CATTERSON, JJ. Monica Drinane, The Legal Aid Society, New York (Judith Stern of counsel), Law Guardian, appellant. Magovern & Sclafani, New York (Keith D. Grace of counsel), for Catholic Home Bureau, respondent. Law Offices of Randall S. Carmel, Hastings-on-Hudson (Randall S. Carmel of counsel), for Lillie C., respondent.

Order, Family Court, Bronx County (Allen G. Alpert, J.), entered on or about December 2, 2003, which, after a fact-finding hearing, dismissed the petitions in this proceeding for termination of parental rights alleging that respondent mother had permanently neglected her children, unanimously reversed, on the law and the facts, without costs, the petitions reinstated, findings of permanent neglect entered, and the matter remanded for dispositional hearings.

Contrary to the Family Court's findings, and despite the deference accorded its credibility determinations, we find that the agency successfully demonstrated by clear and convincing evidence the mother's permanent neglect of these children.   The record shows that the children have been in foster care since February 1996, and that the mother failed to maintain contact with them and to plan for their future for a period in excess of a year in spite of the undisputed diligence of the agency in seeking to develop and nurture a meaningful parental relationship (see Social Services Law § 384-b[7];  Matter of Star Leslie W., 63 N.Y.2d 136, 481 N.Y.S.2d 26, 470 N.E.2d 824 [1984] ).   The mother's lapses were not “de minimis,” as the court characterized them, but rather, telling indications of her lack of responsibility and commitment.   She, for example, absented herself from her children for a substantial period of time, then, upon reentering their lives, missed visits with them, was inconsistent in submitting to drug testing, and failed to enroll in mandated domestic violence counseling.   Often, her excuses for missing drug tests and visits, e.g., oversleeping, tiredness and stress, were inadequate under the circumstances.   Also, the fact that the children, ages 7 1/212 and 8 1/212 years old at the time of the hearing, had not lived with respondent for approximately six years, appeared to have fundamentally damaged their familial bond.