IN RE: KARINA U.

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

IN RE: KARINA U., Alleged to be a Permanently Neglected Child. Otsego County Department of Social Services, Respondent; Vickie V., Appellant. (And Two Other Related Proceedings).

Decided: November 27, 2002

Before:  CREW III, J.P., CARPINELLO, MUGGLIN, ROSE and KANE, JJ. Theresa M. Suozzi, Albany, for appellant. Steven E. Ratner, Otsego County Department of Social Services, Cooperstown, for respondent. William L. Koslosky, Law Guardian, Utica.

Appeal from an order of the Family Court of Otsego County (Coccoma, J.), entered December 19, 2001, which, inter alia, granted petitioner's application, in a proceeding pursuant to Social Services Law § 384–b, to adjudicate Karina U. a permanently neglected child, and terminated respondent's parental rights.

On this appeal, respondent initially contends that the evidence was insufficient to support a finding of permanent neglect.   Accordingly, we must review the record to determine whether petitioner established by clear and convincing evidence that it exercised diligent efforts to strengthen the parent-child relationship and to reunite the family and, second, that respondent has not maintained sufficient contact with the child or planned for the child's future (see Social Services Law § 384–b [3][g][7][a];  Matter of Star Leslie W., 63 N.Y.2d 136, 142, 481 N.Y.S.2d 26, 470 N.E.2d 824;  Matter of Sheila G., 61 N.Y.2d 368, 384–386, 474 N.Y.S.2d 421, 462 N.E.2d 1139;  Matter of Jamal B. [Steven EE.], 287 A.D.2d 898, 899, 731 N.Y.S.2d 567, lv. denied 97 N.Y.2d 609, 739 N.Y.S.2d 98, 765 N.E.2d 301;  Matter of Princess C. [Lavonia D.], 279 A.D.2d 825, 825, 718 N.Y.S.2d 737).

 This record is clear that, subsequent to removing the child from her mother's custody, petitioner's plan was reunification of the family and, to this end, petitioner offered respondent mental health counseling, parent aide, both supervised and unsupervised visitation arrangements, programs to assist her with substance abuse problems, and the Berkshire Reunification Program.   While respondent made some commendable temporary progress toward recovery during the period of January 2000 to June 2000, she subsequently returned to her drug habit, refused to continue drug treatment services and failed to complete an inpatient program.   Upon leaving the program, she made two telephone calls to petitioner's employees but refused to reveal her address or where she could be contacted, prompting petitioner to institute this permanent neglect proceeding.   In our view, petitioner clearly established it had formulated an appropriate service plan, specifically designed to ameliorate respondent's substance abuse problem, which was the significant hurdle to her reunification with her daughter.   Faced with an uncooperative client, the failure of petitioner to continue a meaningless service plan does not detract from a finding of diligent efforts (see Matter of Torrin G. [Dora I.], 240 A.D.2d 820, 821, 658 N.Y.S.2d 712;  Matter of Kelly G. [William G.], 223 A.D.2d 878, 879, 636 N.Y.S.2d 225, lv. denied 88 N.Y.2d 801, 644 N.Y.S.2d 493, 666 N.E.2d 1366).

Next, Family Court correctly determined that petitioner presented clear and convincing evidence of respondent's failure to plan for the future of the child.   In this regard, the parent's failure to correct the conditions that led to the removal of the child is interpreted as the failure to plan for the child's future (see Matter of Nathaniel T., 67 N.Y.2d 838, 840, 501 N.Y.S.2d 647, 492 N.E.2d 775;  Matter of Leon RR., 48 N.Y.2d 117, 125, 421 N.Y.S.2d 863, 397 N.E.2d 374;  Matter of Torrin G. [Dora I.], supra at 821, 658 N.Y.S.2d 712;  Matter of Kelly G. [William G.], supra at 879, 636 N.Y.S.2d 225).   Here, it is abundantly clear that respondent failed to plan for her daughter's future by successfully dealing with her substance abuse problems despite the considerable efforts of petitioner.   In sum, Family Court's determination that the child is permanently neglected was established by clear and convincing evidence.

 We are equally unpersuaded that Family Court erred in its order of disposition.   Our review of the record reveals that Family Court appropriately determined that the best interest of the child (see Family Ct Act § 631) required the termination of respondent's parental rights and that the child be freed for adoption.   Clearly, the child was progressing well in her current foster home, the foster parents were willing to adopt her and it was the child's considered wish that she be freed for adoption.   Moreover, we note that respondent did not testify at the dispositional hearing from which fact Family Court appropriately inferred that she had no plan for the child's future.

Respondent also asserts that her right to due process was denied by reason of the Family Court's failure to recuse itself.   No recusal request was made to Family Court and, thus, the issue has not been preserved for appeal (see Matter of Lane Constr. Corp. v. Cahill, 270 A.D.2d 609, 704 N.Y.S.2d 687, lv. denied 95 N.Y.2d 765).   In any event, we find no merit to this argument, which is based primarily on the dual role of the Judge, who presided as Family Court Judge over these proceedings and as County Judge in criminal proceedings involving respondent.   This does not demonstrate any impropriety (see People v. Smith, 272 A.D.2d 679, 681–682, 708 N.Y.S.2d 485, lv. denied 95 N.Y.2d 938, 721 N.Y.S.2d 615, 744 N.E.2d 151).  “ ‘Recusal, as a matter of due process, is required only where there exists a direct, personal, substantial or pecuniary interest in reaching a particular conclusion * * * or where a clash in judicial roles is seen to exist’ ” (id. at 681, 708 N.Y.S.2d 485, quoting People v. Alomar, 93 N.Y.2d 239, 246, 689 N.Y.S.2d 680, 711 N.E.2d 958 [citation omitted] ).   This record is completely devoid of any such evidence.

ORDERED that the order is affirmed, without costs.

MUGGLIN, J.

CREW III, J.P., CARPINELLO, ROSE and KANE, JJ., concur.

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