Matter of Jeremy Jordon M.

[*1] Matter of Jeremy Jordon M. 2012 NY Slip Op 50900(U) Decided on May 10, 2012 Family Court, Westchester County Colangelo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 10, 2012
Family Court, Westchester County

In the Matter of the Commitment of Guardianship and Custody pursuant to § 384-b of the Social Services Law of Jeremy Jordon M., A child under the Age of Eighteen Years, alleged to be the Child of a Mentally Ill and Mentally Retarded Parent(s) and a Permanently Neglected Child In the Matter of the Commitment of Guardianship and Custody pursuant to § 384-b of the Social Services Law of VIRGINIA SOMMER M. A child under the Age of Eighteen Years, alleged to be the Child of a Mentally ill and Mentally Retarded Parent(s) and a Permanently Neglected Child



In the Matter of the Commitment of Guardianship and Custody pursuant to § 384-b of the Social Services Law of VIRGINIA SOMMER M. A child under the Age of Eighteen Years, alleged to be the Child of a Mentally ill and Mentally Retarded Parent(s) and a Permanently Neglected Child



101297



Wayne A. Humphrey, A.C.A.

Westchester County Attorneys Office

Attorneys for Petitioner

148 Martine Avenue

White Plains, NY 10601

(914) 995-4188

David M. Walensky, Esq.

Attorney for Respondent AM

910 Stuart Avenue

Mamaroneck, NY 10543

(914) 381-9406

Andrew Szczesniak, Esq.

Attorney for Respondent BT

222 Mamaroneck Avenue

White Plains, NY 10605

(914) 682-9282

Jo-Ann Cambareri, Esq. Attorney for the Children

303 South Broadway

Tarrytown, NY 10591

(914) 631-6900

John P. Colangelo, J.

Petitioner Westchester County Department of Social Services ("Petitioner" or "DSS") brought this petition pursuant to § 384-b of the Social Services Law (the "Petition") to terminate parental rights of natural parents Respondents Arthur M. ("AM") and Brandy T. ("BT") (collectively the "Parents") on the grounds that their children are permanently neglected. A total of four petitions were brought - - with respect to each child and each parent separately. Since the material allegations of each petition are virtually identical, the petitions will be referred to collectively as the "Petition."The children, Virginia Sommer M., Date of Birth August 24, 2001 ("Virginia"), and Jeremy Jordon M. Date of Birth March 25, 1999 ("Jeremy") (collectively the "Children") were removed from their Parents' home on June 29, 2005 and placed into the care of the Petitioner pursuant to Section 1022 of the Family Court Act and have remained continuously in the care of foster parents as directed by DSS since that date.

Procedural History.

Before the allegations of the Petition are discussed in detail, a description of the Parents and the events that led up to the filing of the Petition and hearing upon it are in order. As the Petition alleges, the following circumstances constrained DSS to remove the Children to its supervision and to the care of foster parents. Respondent AM is now 68 years of age. He is a Level 3 sex offender, convicted in 1985 of sexually abusing his daughter, then under ten years old and the half sibling of the subject children. AM was convicted of two counts of Sodomy in the First Degree, a felony, served 8 years in state prison and was subject to parole supervision until 1997. Respondent BT, now 34 years old and a person of limited intelligence, lived and continues to live with AM. Despite her knowledge of AM's criminal past and his status as a Level 3 sex offender, she allowed AM to have unsupervised contact with Virginia and Jeremy, to toilet the children, and to sleep with them. (Petition ¶ 5).

The Petition further alleges that the Respondents' regularly used inappropriate and excessive corporal punishment with the Children, culminating in an incident in June, 2005 which precipitated the removal of the Children from their care. On or about June 28, 2005, the Children reported that BT repeatedly struck Jeremy, then six years old, with her fist causing the child to suffer pain, tenderness and bruising to his stomach. The Children also reported that AM regularly slapped them about the face and had kicked Jeremy to the ground on at least one occasion. In addition, prior to June, 2005, Respondents had exposed the Children to incidents of domestic violence; for example, the Children reported that they had seen Respondents strike each other, and Respondent BT throw objects at AM. (Id.). [*2]

Upon a Preliminary Proceeding for neglect pursuant to Family Court Act Section 1022, the Family Court entered an order on June 29, 2005 (Davidson, J.) placing the children in the custody of DSS. Subsequently, after a hearing, the Court entered an Order of Fact-Finding and Disposition and Permanency Hearing (Neglect) on July 20, 2006 (Cooney, J.), under Docket Number NN-8674-05, NN 8675-05, NN 8677-05 and NN 8678-05, in which the Children were adjudicated neglected Children - - neglected by BT and AM - - and directed continued placement of the Children in the care and custody of DSS until the completion of the next Permanency Hearing scheduled for December 14, 2006. At that time, the permanency plan was reunification with parents. At the December 14, 2006 permanency hearing, the Court found that DSS had made reasonable efforts to further the goal of returning the Children home, including DSS's provision of casework counseling, individual therapy, group therapy and parenting skills offered to Respondents by Petitioner.Petitioner was directed to provide and did provide Respondents with weekly visits to be as arranged and supervised by DSS or Family Services of Westchester, as recommended and requested by the parenting therapist and the Parents. As the Petition alleges, the Children's placement in the care and custody of DSS continued unabated.

At a later permanency hearing on February 4, 2009, the Court (Schauer, C.A.R.) found that DSS had continued to make reasonable efforts toward the primary goal by providing "therapeutic services to the Respondents, as well as a parenting skill program and mental health services, and the Respondents have been cooperating with said services. The Department of Social Services has also provided the Respondents with extended supervised visits with the subject children." Referee Schauer ordered DSS to provide the Parents with bi-weekly supervised visits on Saturdays as arranged between the Respondents and HOPE, Inc. personnel, bi-weekly supervised visitation on a weekday as arranged between the Respondents and FSW (Family Services of Westchester), and directed Respondents to visit the Children in accordance with such plan. However, in view of the length of time in which the Children had been in foster care, the Court modified the permanency plan for the children from "return to parents" to "placement for adoption," and directed DSS to file a petition to terminate parental rights within 60 days of the Court's order. Shortly thereafter, on March 31, 2009, Petitioner filed the instant Petition to terminate Respondents' parental rights.

In a subsequent Permanency Hearing Order entered on August 25, 2009, the Court (Schauer, C.A.R.) found that the Petitioner had made reasonable efforts toward the permanency planning goal of adoption in that DSS had filed petitions to terminate the parental rights of Respondents. The Children were then placed in a pre-adoptive foster home and were provided with services, including therapy and educational services. As the Court noted at the time, the Children and Respondents continued to participate in supervised visitation. The permanency order continued the placement of the Children in foster care, and Respondents were ordered to cooperate with casework counseling, individual therapy and follow the recommendations of their respective treating professionals - - in the case of BT, the Community Mental Health Program and for AM, the Westchester Jewish Community Services Sex Offender Program. Respondents were also ordered to comply with the Children's therapy and their treating professionals and to follow their recommendations. The Children's placement with DSS was extended until November 18, 2010, and Respondents were granted weekly supervised visitation with the Children for a duration of two hours, and other supervised visitation as arranged by and [*3]supervised by the foster parents should the foster parents agree to do so.

This visitation protocol was abruptly changed in September 2010 as a result of AM's conviction on June 24, 2010 for the crime of Public Lewdness. By Order to Show Cause dated September 17, 2010, Petitioner sought to suspend all visitation between AM and the Children on the ground that AM had been convicted in White Plains City Court of Committing Acts of Public Lewdness in violation of Penal Law § 245.00. The Incident Report and Supporting Deposition filed by the arresting officer, Sergeant Ess of the Westchester County Police and admitted into evidence during the Hearing, described the conduct for which AM was convicted: on August 13, 2008, AM intentionally exposed his penis while masturbating as he stood on a wall adjacent to and facing a bicycle path parallel to the Bronx River Parkway in the City of White Plains, New York, a public place. At the time, AM was wearing a long-haired wig and a bikini top, with the lower portion of his body unclothed. Sergeant Robert Ess of the Westchester County Department of Public Safety observed AM commit this offense on two occasions, immediately after two female users of the path had passed AM's location. AM was convicted and was sentenced on June 24, 2010 to three years probation, with sex offender conditions. Those conditions included the direction that AM, among other things, not reside with persons under 18 years of age, refrain from any direct or indirect contact or communication whether sexual or non-sexual with anyone under 18 years of age, not be with any child under 18 years of age unless an adult approved by the Probation Department was present, and not enter, linger, loiter, or spend time at locations where persons under 18 years of age are likely to be present. The Court granted the temporary relief sought by DSS and as a result, visitation by AM with the Children remains suspended; since BT refuses to engage in visitation without AM, no visitation of the children with BT has taken place since that time.

The Petition

The Petition alleges that the parental rights of AM and BT should be terminated on two independent, albeit somewhat related grounds: first, that the Parents are unable to properly care for their Children and the Children are in danger of becoming neglected "by reason of mental illness or mental retardation" of AM and BT respectively. (Soc. Service Law § § 384-b(4)(c) and (6); Petition, ¶¶ 6-12); and second, that the Children should be deemed "permanently neglected" within the meaning of Social Services Law. (Social Services Law § § 384-b (4) (d), (7); Petition ¶¶ 13-20). With respect to the causes of action alleging permanent neglect, the Petition states that Respondents each, during the period following the placement of the Children in the custody of DSS in June 2005, failed to "maintain contact or plan for the future" (Petition No.15) of their Children while the Children were in the custody of DSS, despite the diligent efforts of DSS to promote a favorable outcome. (Petition ¶¶ 13-20).

As a general rule, in order to adequately "plan for the future" of their children, parents must demonstrate that they are able to "take such steps as may be necessary to provide an adequate, stable home and parental care for the child." (Social Services Law § 384-b (7)(c)). To support a finding of permanent neglect pursuant to Social Services Law 384-b (4)(d)(7)(a), - - the second ground alleged by Petitioner herein - - a petitioner must establish by clear and convincing evidence that respondent parents failed to maintain contact with or plan for the future of their children during a period of "at least one year or fifteen out of the most recent twenty-two months" after the children came into the custody of an authorized agency, notwithstanding the [*4]agency's diligent efforts to encourage and strengthen the parental relationship. (Social Services Law § 384-b (7)(a), (c)); see Matter of Star Leslie W., 63 NY2d 136 (1984). In the instant case, Respondents orally entered a general denial of the material allegations of the Petition and now contend that Petitioner has failed to sustain its burden of proof.

As discussed more fully below and as the evidence presented makes plain, Petitioner has more than met its burden of proving by clear and convincing evidence that Jeremy and Virginia are permanently neglected Children within the meaning of the statute. The testimony adduced and documents admitted into evidence clearly show that AM and BT, either separately or together, proved manifestly incapable of planning for their Children's future. That is, as the evidence shows, neither AM nor BT, individually or in tandem, progressed sufficiently such that any reasonable person could conclude with even a modicum of confidence that they were or are capable of providing a stable home environment for the Children - - this despite diligent efforts by DSS workers and therapists throughout the time period at issue to help them realize that goal.

The Hearing

The Court conducted a fact-finding hearing with respect to the Petition (the "Hearing") on several dates, commencing October 21, 2010 and concluding on November 15, 2011. Petitioner called several witnesses, including: two case workers who supervised the weekly court ordered visitation between Respondents and the Children, as well as law enforcement personnel regarding AM's August 2008 arrest for and conviction of the charge of Public Lewdness. AM called Kenneth Lau, a social worker who has been treating AM for the past 17 years; AM also testified on his own behalf. The Attorney for the Children called Dr. David Pogge, who examined AM at the request of the Department of Probation as part of AM's Pre-Sentence report relating to his Public Lewdness conviction and to determine AM's need for treatment and risk to re-offend. BT chose not to call any witnesses and did not testify.

Petitioner's Case: Testimony of the Case Workers.

The first witnesses called by Petitioner were two case workers, Jennifer Fernandez and Brianna Jeffers, who supervised the weekly visitation of AM and BT with their Children during the period of approximately September, 2006 through in or about August, 2008. As recounted by them, despite frequent visits, AM and BT made virtually no progress toward the goal of demonstrating that they were capable of providing a suitable and stable home environment for their Children. Indeed, when AM was arrested at or near the end of the time period at issue, the opposite conclusion was reached: the Children would be hindered rather than helped by a return to their Parents.

Testimony of Jennifer Fernandez

Jennifer Fernandez ("Fernandez") was employed as a caseworker by HOPE, Inc. ("HOPE") the entity retained by DSS to supervise weekend visits among Respondents and their Children during the time period at issue. Fernandez testified that her employment at HOPE began in August 2001. She stated that she was a psychology major in college and had also completed a practicum at an early childhood school. She also studied pedophilia and the cognitive processes in abnormal psychology, has a Masters Degree in psychology, and learned to teach parenting through her college classes. In her practicum, she successfully identified issues at day care and developed plans with parents. Fernandez knew at the outset of her involvement with AM that he was a sex offender who had sexually abused his older daughter. [*5]

The visits which Fernandez supervised took place at an apartment style setting provided by HOPE for purposes of supervised family visits. The initial plan for visits when they began in late 2006 was for BT to bring a meal and engage in activities with the Children. During these early visits, BT did attempt to prepare a meal for the Children but while doing so, was unable to keep the Children within view and engaged. She cleaned up the kitchen area while the Children watched a movie. Fernandez found that BT not only failed to initiate games with the Children, but also had significant difficulty addressing their misbehavior. She took numerous photographs of her Children, but actually did little with them. As far as AM was concerned, he quickly lost focus of his own Children. When children from another family were present in the apartment for visitation at the same time as the AM family, AM sought their attention rather than the attention of his own Children. AM also spent much of his time engaged in inappropriate conversation with Fernandez on a variety of topics unrelated to child care, and was generally ineffective in co-parenting the Children. Fernandez testified that AM told her about his now 28 year old daughter and how he regretted what had happened between them in the mid-1980's. During the visit of December 30, 2006, AM told Fernandez that another social worker had taken the Children with him to see a movie, Charlotte's Web; he found that trip to be "risky" because others in the movie theater "did not know that [he] was around." Similar to the previous visit, BT failed to initiate activities with the Children. Based on her observations during these late 2006 visits, Fernandez concluded that BT had significant difficulty addressing the misbehavior of the Children, failed to recognize the Children's cues for attention and rarely initiated any activity with the Children on her own; she needed prompting by Fernandez in order to do so.

At the four hour visit on January 20, 2007, BT arrived early in order to have 30 to 45 minutes of unsupervised time with the Children before AM arrived. During that unsupervised time, Jeremy threw a temper tantrum, biting and kicking and cursing at his mother; BT tried to physically restrain him, which Fernandez found to be inappropriate. When AM arrived, he again engaged in inappropriate conversation with Fernandez. For example, while Jeremy was playing with dolls, AM told Fernandez that he thought that such an activity was appropriate because his "hatred for women" began when, as a youngster, he was forced to play with trucks rather than dolls. AM also told Ms. Fernandez that his 6 year old daughter Virginia reminded him of his older daughter Sherry, whom he had molested.Fernandez also testified that AM tried to engage her in inappropriate conversation in front of the Children, and wanted the little girls from the other family who were also visiting the center to stay and play with or near him, rather than initiating a game with his own Children. During the visit, BT sat and watched but was unable to provide structure or interact in any meaningful or helpful way with her Children and thereby meet recognized parenting goals.

Fernandez made similar observations during the four supervised visits that took place in February. On February 3, 2007 BT arrived with food, but the Children ran away from her and tried to engage Fernandez rather than their Mother. The other family in the apartment who had visitation simultaneous to Respondents' visitation was present; the children in that family were 5 and 7 year old girls. Fernandez heard AM say , while looking at the 5 year old girl, that "[s]he's too young". AM told Fernandez that parents should be careful with whom they leave their children. He then recounted the experience of going with BT to a swimming pool, where AM said he spotted "two perfect targets." During these February visits, AM also told Fernandez that [*6]he had been spending time with a 15 year old girl - - a neighbor who, he said, had been sexually abused by her mother's boyfriend. The 15 year old neighbor asked AM if she could borrow his underwear, and told him her bra size. Fernandez remarked that AM seemed preoccupied with sharing this information with her instead of spending time with his own Children.

During the next weekly visit on February 10, 2007, BT was the first to arrive. After preparing a meal, she started to make a birthday cake for Fernandez. Rather than interact with the Children during the visit, BT brought movies for them to watch while she worked in the kitchen. When AM arrived, BT had difficulty managing her daughter and AM made no effort to correct Virginia's misbehavior. Fernandez observed that Respondents often bickered and did not co-parent effectively, citing as an example an incident where AM tried to discipline Jeremy while BT tried to console him. To Fernandez, BT was unable to establish structure, enforce behavioral limits, or engage the Children in appropriate activities, and thus did not meet parenting goals. AM again mentioned this 15 year old female neighbor to Fernandez. He advised Fernandez that the child's mother had told him that he could not spend time alone with the girl unless BT was also present. He confided in Fernandez that he liked having the 15 year old around him because they share the "same sense of humor", and he "practices self control" when she is there. He added that he sometimes picks her up at school, and he notices the short skirts that the children wear. He also confided in Fernandez that he and the 15 year old female neighbor had exchanged underwear. Needless to say, Fernandez viewed AM's relationship with the 15 year old girl as unhealthy in light of AM's status as a registered sex offender. AM also referred Fernandez, in front of his Children, to a recent news story involving a 28 year old teacher who had become intimately involved with a student.

During the visits in March 2007 (March 3, 10 and 24), neither Parent met the parenting goals - - again. The visits that took place in April and May also proved problematic for reasons similar to the reasons that obtained during previous visitations. For example, on April 7, BT arrived early and immediately began preparing a meal. She became frustrated when Virginia asked her questions, which caused the child to run to Fernandez in tears. BT explained to Fernandez that Virginia "would not let her finish" in the kitchen. Fernandez was concerned that BT frequently failed to leave the kitchen to play with Virginia or Jeremy, or even try to watch them from the kitchen area. Fernandez observed that it was becoming increasingly difficult for BT to cope with either Child, as evidenced by her abrasive responses to Virginia. BT appeared to be overly dependent on AM; she was unable to transport herself by bus from New Rochelle to the HOPE center in Yonkers, despite the assistance of Fernandez in finding a bus route that would drop her off in Getty Square, Yonkers.

As far as AM was concerned, he again was not amendable to redirection toward his Children and he continued to engage in inappropriate conversations with Fernandez. He also allowed Jeremy to behave inappropriately. On more than one occasion, Jeremy punched his father in his private parts, and AM allowed Jeremy to bounce on his lap and try to kiss AM on the mouth. In addition, AM placed his hand under the back of Jeremy's shirt, and encouraged Jeremy to reach inside AM's front pant's pocket to retrieve tootsie roll candy that AM habitually kept there. Fernandez testified that she spoke to AM about inappropriate physical boundaries, and found it unusual that AM always seemed to have tootsie rolls stored in his front pants pockets. The conclusion Fernandez reached with regard to the April and May visits was that [*7]even though Respondents attended regularly, they did not even approach the achievement of parenting goals.

Parts of some of the June 2007 visits (2, 9, 16, 23 and 30) took place outdoors. Fernandez noticed that AM had to repeatedly ask BT to watch Virginia more carefully. Her response was either "I am" or an expression of annoyance. The parenting goals were still not met during the June visits or during the three and four visits she supervised in July and August. Fernandez recalled a visit to a local park in the summer of 2007; elementary school students were present. AM crossed his arms, moved to the back of the playground area and told Fernandez he was uncomfortable and could not be left alone with children. She asked AM that if reunification of Respondents with their Children was the ultimate goal, what will happen when, in the future, a friend of Virginia comes to their home to visit; he replied that he hoped that he would be dead by then.

During the August visits, neither Parent met parenting goals. AM had difficulty refraining from talking about himself or avoiding conversations that did not have a sexual content or allusion. For example, while Fernandez was teaching Virginia to jump rope, AM complained that "her parts" were bouncing around.

Throughout this entire period - - late 2006 through August 2008 - - despite Respondents' stellar attendance record at the visitations and the fact that they invariably brought games and food for the Children, Fernandez always kept the visits fully supervised on a "one on one" basis; that is, she always insisted on being present during each visit. She did so because she was concerned about safety. BT had difficulty managing herself and the Children. She oftentimes failed to watch them, and AM continually expressed inappropriate sexual thoughts and his fears about the safety of his Children if he were to be left alone with them. AM could not avoid telling Fernandez about himself, that he cross-dressed, discussing his relationship to his 15 year old female neighbor and other stories. Also, AM continued to express fears about what he was liable to do if he was left unsupervised.

Fernandez continued to meet with the family until approximately August 2008; she supervised a total of approximately 24 visits at the Hope Center. In Fernandez' opinion, Respondents consistently failed to meet parenting goals. Fernandez described the contacts between BT and her children as challenging, since BT had difficulty establishing structure, reinforcing behavioral limits and engaging in activities with her Children. She had difficulty using the computer and DVD player and she was becoming increasingly abrasive toward Virginia. Respondent AM continued to engage in inappropriate conversations with Fernandez, and made statements to the effect that people like himself (pedophiles) seek to get the trust of other people, so they can then "do what they need to do".

An additional reason that Fernandez found AM inadequate as a parent was the level and type of conversations he had with her in the presence of the Children. AM often initiated conversations about his past, but never asked Fernandez for suggestions about how he could better relate to his Children. Perhaps as a result, one year after the visits started, AM dealt no more effectively with Jeremy's frequent tantrums then when supervised visits first began. In summary, between 2006-2008, Ms. Fernandez saw no improvement in the parenting skills of BT or AM, and neither had shown any improved ability to co-parent effectively.

Testimony of Case Worker Brianna Jeffers: [*8]

During the time period at issue, certain of Respondents' visits with their Children were also supervised by Brianna Jeffers ("Jeffers"). Jeffers worked with the Family Services of Westchester ("FSW"); she was assigned the case on February 27, 2006, when the Children were in therapeutic foster care through FSW. FSW generally provides casework counseling, ongoing telephone contact with parents, parenting classes, therapy and regular visitation, as well as to ensure compliance with court orders. BT received therapy, visitation and parenting classes through Westchester Institute for Human Development (WIHD). AM received therapy, sex offender treatment and parenting. These and other services were being provided to both Parents. Neither parent successfully completed individual therapy; also, the Parenting Program at WIHD continued but was not successfully completed.

From approximately December 2006 through in or about August 2008, Jeffers assisted with visitation, providing weekly indirect supervision. AM bought a book for Jeffers in 2008 entitled "Conversations with a Pedophile", and frequently sought to discuss it with her. Jeffers found both the book and AM's fascination with it disturbing, particularly since its theme was - - as recounted by AM - - that pedophiles are never cured. With respect to BT, Jeffers' testimony echoed Fernandez'; she observed that BT's interaction with the Children was consistently passive and limited. When Jeremy had tantrums, BT often triggered a further tantrum by touching Jeremy and trying to pick him up. Jeffers was then compelled to intervene and encourage BT to use words because touching Jeremy merely escalated his tantrums; however, BT would become upset and request that Jeffers not intervene. BT also displayed difficulty in knowing what one Child was doing when she was with the other; she also frequently engaged in play by herself. During one visit, when BT was coloring a book with Virginia, she continued coloring even though Virginia had left, and she had no idea where Virginia or Jeremy had gone.

BT's reaction to AM's arrest for public lewdness in August, 2008 was particularly inappropriate and demonstrated her inability to understand the Children's best interests. After AM was arrested for Public Lewdness, Jeffers brought BT to the Children's school. At the school, she saw BT display, in Jeremy's classroom, a newspaper article about AM's arrest; she did so in close proximity to Jeremy, his teachers and classmates, and laughed about what AM had allegedly done.

In short, Jeffers reached the conclusion that the Children could not be safely discharged to Respondents. Safety and supervision issues persisted with BT, and as Jeremy's tantrums became more frequent and intense, AM himself became frustrated and stated that he feared that he might use corporal punishment if Jeffers was not present. Jeffers was also concerned about AM being present because, she testified, BT's intellectual limitations might not allow her to pick up on cues that trouble from AM was in the offing. AM also expressed to Jeffers his "urges" with respect to Virginia.

Testimony of Sergeant Robert Ess and Detective Steven Formosa

Petitioner also called as witnesses two Westchester County Police Officers - - Sergeant Robert Ess and Detective Steven Formosa. Sergeant Ess witnessed AM's conduct on August 13, 2008 and arrested him for Public Lewdness. In his testimony, Sergeant Ess recounted what he had observed; the substance of his description is set forth in Ess' Incident Report and Supporting Deposition discussed above and need not be repeated at length here. Suffice it to say that Sergeant Ess testified that during the mid-afternoon on August 13, 2008, he saw AM standing on [*9]a wall adjacent to a bicycle path parallel to the Bronx River Parkway wearing a wig, dressed only in a bikini top, and masturbating while female joggers passed by. He promptly brought AM to the police station.

Detective Formosa interviewed AM at the police station on August 13. Detective Formosa testified that AM admitted to him that he was a level three sex offender based on his conduct with his older daughter. Formosa also reviewed AM's rap sheet, which revealed a prior public lewdness conviction and arrests for other offenses such as loitering, weapons possession and failure to register as a sex offender.

During the interview, AM mentioned to Formosa that he continues to have improper sexual "urges"; in order to overcome them and to keep himself from doing "something wrong", he stated that he likes to dress in women's clothing, go to a public place and masturbate, always with a chance that he might be seen by a female passer-by. AM also stated to Formosa that his younger daughter was now acting in a way that reminded him of his older daughter when she was that same age, the approximate age at which he molested her - - actions that he called "triggers". AM claimed that his public masturbation and cross dressing is a way in which he seeks to control his "urges" when the "triggers" arise. AM mentioned to Formosa that he had over 100 "victims under his belt" and that he liked girls seven years old and older. AM also told Formosa that he should read the same book he had recommended to Jeffers - - "Confessions of a Pedophile". AM told Formosa that if Formosa wanted to "know his [AM's] mind" he should read the book. Detective Formosa testified that he did read the book, and gleaned from it the same conclusions AM had related to him: that pedophiles are never cured, and are constantly both fending off urges and lining up their "next victim." Regarding his present family situation, AM told Detective Formosa that he was currently fighting to get his Children back. He described the Childrens' mother, BT, as "retarded," his son as "autistic", and his daughter as "98% normal."

Respondents' Case: Testimony of AM.

AM testified on his own behalf. He responded to the testimony of Jeffers and Fernandez regarding the supervised visits with his Children, and related to the Court his personal past and present. AM first conceded that he did make certain comments to Fernandez and Jeffers that they may have considered inappropriate, but he did so only to "educate" them about his personal history and ongoing condition. He expressed to them his concern - - more for himself than for others - - that if he is seen in close proximity to children other than his own, allegations of misconduct might be made. He admitted his felony conviction regarding his now adult daughter, and to his arrest in 2008 and other arrests and convictions for indecent exposure and other offenses. He claimed he had undergone years of treatment and therapy for his prior felony conviction and had not reoffended in the same manner since that time. With respect to his August 2008 Public Lewdness arrest and subsequent conviction, AM sought to reargue his case; he claimed that he had tried to and did remain out of view, while acknowledging, at the least, swimming naked in the Bronx River. Nonetheless, he conceded on cross-examination that he still has the compulsion to cross-dress and to possibly expose himself to adolescent children - - compulsions he claims to keep under control. However, he admitted that, to this day, he does not totally trust himself.

On cross examination by the Attorney for the Child, AM admitted that he had several [*10]contacts with his 15 year old female neighbor and had lent her his bathing suit - - which she tried on in his presence. He also admitted to placing tootsie rolls in his pants pockets during his Children's visits and having Virginia and Jeremy retrieve them; in retrospect, he conceded that doing so was "not a good idea" in view of his sexual history. He also stated that his daughter Virginia now acts in a way that reminds him of his older daughter Sherry at the age when he abused her. He nonetheless claimed that he takes "extra care" when Virginia reminds him of Sherry, and that he has no "urges" or "triggers" of a sexual nature toward Virginia. These protestations were belied by his answers to questions regarding his interview with and what he told Dr. David Pogge. AM testified that he told Dr. Pogge - - a psychologist who interviewed AM for the Probation Department following the Public Lewdness conviction - - that he had and still has deviant sexual fantasies about girls of the age from the stage of the onset of puberty through adolescence. AM acknowledged to Dr. Pogge and in his testimony that sex offenders are never cured, and that he could not truthfully say that he would never have "urges" toward his daughter Virginia.

Respondents' Case: Testimony of Kenneth Lau

AM's concerns about his potential for having "urges" toward his daughter Virginia were, at the very least, echoed by the remaining two witnesses: Kenneth Lau ("Lau"), called by AM himself, and Dr. David Pogge, who was called by the Attorney for the Children. Lau is a Social Worker who was qualified by the Court as an expert in the field of assessing and treating sex offenders, juvenile and adult. Lau has been treating AM since February 1993 when AM was referred to him by the Parole Department. Since that time, AM has, according to Lau, engaged in treatment for incestuous behavior, which was completed in 1999, and treatment for exhibitionism which continues to this day. Lau conceded that despite years of treatment, AM remained, throughout this period and to the present, a moderate to high risk to reoffend as far as exhibitionism is concerned - - a fact borne out by AM's 2008 arrest and subsequent Public Lewdness conviction.

As far as incestuous behavior is concerned, Lau conceded that AM will always pose a risk to his younger daughter Virginia, but characterized AM's risk of reoffending for incest as "low." However, such risk of incestuous behavior could "move" to a moderate or high level if AM is placed under stress or in a stressful environment. Lau testified that AM told him that Virginia sometimes reminds him of his daughter Sherry at the age at which he abused her, and thus evokes similar "urges" - - which he claims to control. Despite this claim by AM, Lau stated on cross-examination that the return of the Children - - particularly Virginia - - to the AM-BT household would be an augmented stress to AM, and he could not testify with certainty what the level of risk would be to Virginia if such a stressful condition were to be imposed. In that regard, it is instructive to note, as Lau acknowledged, that AM's 2008 arrest followed in close proximately to the first planned unsupervised visit among AM, BT and their Children. In short, Lau did not and could not rule out some level of risk to Virginia posed by AM, particularly if she and her brother are returned to him.

Testimony of Dr. David Pogge, Called by the Attorney for the Children.

The sole witness called by the Attorney for the Children, Dr. David Pogge was even more emphatic in assessing the past and present risk posed to the Children - - particularly Virginia - - by AM. Dr. Pogge was and is the Director of Psychological Assessment and the Director of [*11]Training at Four Winds Hospital in Katonah, New York. Dr. Pogge is an expert in the field of psychology. He examined AM at the request of the Department of Probation following AM's conviction for Public Lewdness. According to Dr. Pogge, the Department of Probation regularly refers sex offenders to him for evaluation with respect to their possible need for treatment and for an assessment of the risks they may pose to the community. Dr. Pogge assessed AM for these purposes during the course of three interviews. All parties stipulated that the Probation Department asked Dr. Pogge to perform such an evaluation with respect to AM after his conviction.

In connection with his examination of AM, Dr. Pogge prepared a report (the "Report") that was admitted into evidence. This Court finds the Report by and testimony of Dr. Pogge to be compelling. As Dr. Pogge's Report states and as his testimony reflected, he found AM's sexually based problems to be habitual, persistent and compulsive in nature. He described AM's behavior as a deviant pattern of sexual acts, and AM as manipulative. Dr. Pogge concluded that AM had gained virtually nothing from his 17 year participation in treatment for sex offenders with Mr. Lau in that his treatment has not mitigated against the possibility, if not likelihood, of re-offending. Dr. Pogge assessed AM's risk to re-offend, both with respect to exhibitionism and sexual abuse, to be high based largely upon the lack of any identifiable positive or ameliorative factors. Instead, AM demonstrated a lack of any reasonable coping strategy, a history of molesting pre-adolescent females, a long history exposing himself, and a persistent lack of discretion in making contact with and acting irresponsibly toward adolescents, including young neighbors and his Children's friends.

In looking for mitigating factors that may have possibly resulted from AM's years of treatment with Lau - - such as viable plans for improved behavior or insights into his own condition - - Dr. Pogge found AM sadly lacking; he found that AM had no plans or insights that would counteract a propensity to re-offend. The only purportedly helpful "plans" that AM identified to Dr. Pogge were cross-dressing to "soothe" himself, and assembling jigsaw puzzles. When Dr. Pogge advised him that cross-dressing was clearly inappropriate behavior in front of his Children, AM stated he would just "shut it down" and "turn off" his feelings " like "a light switch." However, Dr. Pogge reasoned that if AM had in fact possessed that capability, he would have been able to avoid the problems he encountered 15 years into treatment - - re-arrests for illicit sexually related behavior including public lewdness.

Dr. Pogge also observed that AM lacked insight into why he behaved as he did and revealed no true understanding of the reasons underlying his behavior. AM reported fantasizing about sexual deviance as a recurring part of his sexuality. Dr. Pogge also opined that AM presented a significantly increased risk to re-offend for persistent deviant sexual offenses despite AM's claim that "by dressing up in woman's clothing, it soothes him and reduces the likelihood that he will act on impulses". To the contrary, Dr. Pogge observed that such pattern of behavior had, in the past, preceded a more overt deviant offense - - including AM's abuse of his older daughter in 1984 and 1985 and his Public Lewdness conduct in 2008 - - rendering the reoccurrence of that pattern prior to another offense even more likely. As Dr. Pogge stated as part of the conclusions of his Report,

"Given all of the foregoing, it is impossible to see Mr. [AM] as someone who should have parental authority over minor children, particularly female children. While he should clearly [*12]continue in sexual offender treatment and in psychiatric care for the remainder of his life, at most these can be seen as key components in a continuing effort to manage his risk to re-offend. There is nothing in these data to suggest that they have produced any significant reduction in his recidivism risk or that they have produced any enduring change in his sexual deviance or his personality. It appears very likely that Mr. [AM ]will commit further sexual offenses in the future. Although anything is possible, it appears that he is most likely to engage in exhibitionism and public masturbation. However, if minor children were allowed to reside with Mr. [AM] or if he were allowed any unsupervised contact with minor children, then the likelihood of his eventually sexually victimizing them appears to be very high." (Emphasis added).

Dr. Pogge concluded in his testimony that AM suffers from poor judgment, poor sexual control, and presents a high risk of re-offending, particularly toward female children; however, even the risk to male children is not extremely low since AM admitted to exposing himself to both genders.

Discussion, Findings and Conclusions.

Petitioner initially sought to base its claims that the parental rights of AM and BT should be terminated on two independent, albeit somewhat related grounds: first, that the Children were in danger of becoming neglected children "by reason of mental illness or mental retardation" of their Parents. (Soc. Service Law §§ 384-b (4)(c) and (6); Petition, ¶¶ 6-12); and second, that the Children should be deemed "permanently neglected" within the meaning of the Social Services Law by virtue of AM and BT's "failure to plan" for their Children's future. (Social Services Law §§ 384-b 4 (d), (7); Petition , ¶¶ 13-20.).

At the close of its case in chief, Petitioner withdrew the causes of action asserting "mental illness or mental retardation" and elected to proceed only with the claims alleging that the Children were "permanently neglected." However, as the testimony of the witnesses called by Petitioner and Respondents as well as documentary evidence adduced at the hearing bore out, the mental condition and abilities of Respondents, as reflected in observations of their behavior toward and interaction with their Children, nonetheless informed the issue of whether the Children should be found to be "permanently neglected" within the meaning of the statute.

By grounding its claim of permanent neglect on Respondents' failure or inability "to plan for the future of the child[ren]," Petitioner necessarily called into question Respondents' abilities, during the period at issue or in the foreseeable future, to "provide an adequate, stable home and parental care for the children." (Soc. Services Law § 384-b (7)(c)). As observed and documented over the period of time at issue herein following the Children's placement in the care of DSS, Respondents' mental and behavioral abnormalities, while perhaps not rising to the clinical level of "mental illness" or "mental retardation", led several witnesses to conclude that Respondents could not then, now, or in the future provide a safe and stable home for their Children. As the testimony adduced at the Hearing reflected, such unsuitable and abnormal behavior manifested itself in different ways for AM and BT, but in both cases, such behavior leads to the ineluctable conclusion that neither, acting alone or together, can provide adequate care or a stable home environment for their Children.

AM.

With respect to the father AM, the concerns regarding his ability to provide a "stable [*13]home" for his children centered around both his history as a sex offender and his continued aberrant behavior which posed a continued threat to the well being of his Children. It is undisputed that AM is a convicted pedophile - - a fact which AM not only makes no effort to disguise, but instead frequently trumpets. In 1985, AM was convicted of two counts of Sodomy in the First Degree with respect to his daughter Sherry, then under ten years of age.

AM served 7 years in state prison, several years on parole and has undergone over 18 years of treatment as a sex offender. Despite such treatment and lack of rearrests for serious sexual offenses relating to children since 1985, AM's behavior has remained suspect. As the testimony of the Westchester County Police witnesses showed, AM was arrested numerous times for lewdness, loitering, weapons possession and other charges. Moreover, AM's conduct toward and interactions with his Children as observed by case workers during the time period at issue created cause for concern.

Such discomfiting behavior included actions such as placing tootsie rolls in his pants pocket and encouraging his young Children to retrieve them - - behavior in which he persisted despite the request of his visitation supervisors that it cease; his repeated focus on the children of others rather than on his own during visits; inappropriate comments to and discussions with such case workers - - again, during visits with his Children - - regarding his latent pedophilia and the dangers he posed to his own and other children; his recounting to his Children's counselor of plainly improper interaction with a neighbor's teenage daughter, including exchanging clothes - - a bathing suit and underwear - - with her; and in general, the observation that during visits with his Children, AM's focus was more upon himself and his illicit predilections - - that he invariably discussed with Jeffers or Fernandez - - than upon his Children's care.

Such behavior and comments, along with other conduct observed by both case workers during the supervised visits with the Children, led both Jeffers and Fernandez to independately conclude that AM was not then and would not be fit to provide a stable, healthy environment for the Children without constant supervision. This conclusion was confirmed in Jeffers' mind when AM was charged with Public Lewdness for his conduct in August 2008 - - conduct engaged in at the very time that he and BT were to have their first unsupervised visit with their Children. AM was arrested and ultimately convicted of the Class B Misdemeanor of Public Lewdness and sentenced to 3 years probation. Jeffers' reaction was hardly surprising; the conduct for which AM was charged and convicted included standing on a wall in close proximity to a bicycle path parallel to the Bronx River Parkway at mid-afternoon, clad only in a top portion of a woman's bikini and masturbating while female joggers passed by. To Jeffers, a supervisor of his visits with the Children at the time, this was the final straw; as she testified, it confirmed for her the belief that AM would not and could not be trusted with his Children.

Of equal if not greater importance, this conclusion was also reached by the psychologist, Dr. Pogge, who interviewed AM for the Department of Probation. As recounted more fully above, Dr. Pogge stated in his Report and testified at the Hearing that AM continued to have "urges" for young children, and remained - - after decades of treatment, counseling and therapy - - a high risk to reoffend with respect to sex offenses, including those related to Children. The fact that his daughter Virginia is approximately the same age now as the daughter AM abused in the 1980's makes Dr. Pogge's finding even more salient. And while Kenneth Lau, the social worker who has counseled AM for over 18 years, was more sanguine about AM's prospects, he [*14]conceded that AM remained a significant risk to reoffend in both areas of sexual abuse and exhibitionism.

Put simply, AM proved by his own conduct - - as observed by Jeffers and Fernandez during supervised visitation with his Children as well as his arrest and conviction for Public Lewdness - - that he could not be trusted alone with, much less provide a safe and "stable home" environment for Jeremy and Virginia during the time period alleged in the Petition. (Social Services Law § 384-b (7)(c)). This proved true despite the numerous and diligent efforts of DSS to assist AM and BT throughout this period. Moreover, this conclusion was confirmed by professionals - - Dr. Pogge and, to a lesser but significant extent, Kenneth Lau - - who examined him.

Under such circumstances, where a parent who has been subject to certain difficulties or disabilities and has been afforded sufficient opportunity to progress, but for a significant period of time has failed to do so and his prospects for doing so remain remote, courts have not hesitated to find permanent neglect and terminate his or her parental rights. The alternative - - keeping the children indefinitely in the limbo in the foster care system - - has been held to be, under such circumstances, in no ones best interest. As the cases that address this issue show, this is particularly true in situations where - - as here - - the unameliorated parental behavior concerns a propensity that might well pose a real danger of physical or psychological harm to the children.

For example, in the Second Department case of in the Matter of Jaquan Jomaine-Anthony V., 39 AD3d 868, 869 (2d Dept. 2007), the Appellate Court upheld the Family Court's finding of permanent neglect. In Jaquan, the subject father had not only received significant assistance from the petitioner, but had dutifully attended courses designed to assist him in overcoming his "propensity for domestic violence." Since the father, despite these efforts, nonetheless "failed to gain insight" into his underlying condition and the "issues which led to the removal of the subject children from his home" remained extant, a finding of permanent neglect on the ground of his failure to plan for his children's future was justified.

As the Second Department stated,

"As a threshold matter, the petitioner, Forestdale, Inc., established that it made diligent efforts to encourage and strengthen the parental relationship between the appellant and the subject child by, inter alia, scheduling weekly visitation and by providing referrals to parenting skills classes and anger management counseling (see Social Services Law § 384-b [7] [f]; Matter of Jamie M., 63 NY2d 388 [1984]). Further, the agency established by clear and convincing evidence that, despite its diligent efforts, the appellant permanently neglected the subject child by failing to plan for his future (see Social Services Law § 384-b [7] [a]; Matter of Star Leslie W., 63 NY2d 136, 142-143 [1984]). Although the appellant attended anger management counseling and completed a parenting skills course, the evidence demonstrated that he failed to gain insight into the issues which led to the removal of the subject child from his home. Despite the agency's efforts to assist the respondent father to improve his deficient parenting skills and to remediate his propensity for domestic violence, the father's aggressive and threatening behavior continued unabated. (see also Matter of Nathaniel T., 67 NY2d 838, 841-842 [1986]; see also Matter of Jennifer R., 29 AD3d 1005, 1006 [2006]; Matter of Ajuwon H., 18 AD3d 752 [2005])." (Id. at 869; emphasis added). [*15]

Similarly, in the Matter of Nathaniel T., 67 NY2d 838, 841-842 (1986), the Court reviewed the evidence adduced at the permanent neglect hearing in Family Court and reversed the Appellate Division. The Court held that parental rights should be terminated since the parents had advanced no realistic plan for their children's future. The Court found that despite their ephemeral compliance with petitioner's directives - - by diligently attending programs and participating in all scheduled visitations - - the parents, similar to AM and BT herein, failed to demonstrate that they had "actually learned to accept responsibility and modify their behavior." (Id.) at 842). Accordingly, the Court found permanent neglect on the grounds of failure to plan for the children's future.As the Court reasoned:

"[I]t is apparent that the central issue here is whether respondents have genuinely taken steps toward recognizing their problems and changing their attitudes and patterns of behavior. Attendance at the myriad programs and visits arranged for respondents clearly does not signal the necessary change, nor does their desire for return of the children. Of singular importance in reaching a determination as to whether respondents have actually learned to accept responsibility and modify their behavior must be an evaluation of respondents' own testimony, particularly their credibility, as well as the evidence of witnesses (professional and nonprofessional) who have dealt with them in the various programs and observed them and the children. In this it is obvious that Family Court had the best vantage point, and its findings must be accorded the greatest respect.

****

We agree with Family Court that the evidence clearly and convincingly showed that, despite petitioner's diligent efforts to reunite this family, respondents took no effective steps to correct the conditions leading to removal or advance a realistic, feasible plan. While continually finding fault with or no need for various programs and personnel, respondents "gained no insight into their own behavior which had been so physically and emotionally damaging to the children and had required their removal." (112 AD2d 692, 696.)." (Id. at 841-842; emphasis added).

See also, e.g., In the Matter of Galeann F., 11 AD3d 255, 256 (1st Dept. 2004). ("Despite the agency's diligent efforts to encourage and strengthen the parental relationship by scheduling regular visitation and referring the mother to therapy and parenting skills programs, which she did attend, she nonetheless failed to gain insight into her behavior that has led to the family's current circumstances."); In the Matter of Amy B., 37 AD3d 600, 601 (2d Dept. 2007).

In the instant case, as in Jaquan Jomaine-Anthony V. and Nathaniel T., the evidence clearly shows that AM proved, during the time period at issue, that he is incapable of planning for the future of his Children or providing a stable home for them by virtue of the fact that he posed and poses a clear and present danger to their well being. His behavior over a period spanning many months and as cataloged by Jeffers and Fernandez showed, at best, that he was and remained quintessentially self absorbed; he often failed to pay attention to his Children even when directed to do so and instead appeared to be fixated on his own psychological predilections. What is worse, his frequent inappropriate comments and discussions with Jeffers and Fernandez - - regarding other young children he observed during visits, or his interaction with his teenage [*16]neighbor - - showed to them, even before his arrest, that he remained a threat to his Children's well being.

This apprehension was confirmed - - if confirmation were even necessary - - by his August 2008 conduct and subsequent conviction for Public Lewdness, and the observations and report of Dr. Pogge that followed. As Dr. Pogge testified and wrote, AM's actions - - coming on the heels of AM's and BT's first planned unsupervised visit with their Children - - confirmed that he remained unsuitable to plan for or provide a stable home for his Children. Dr. Pogge concluded that AM remained a high risk to reoffend and engage in sexually deviant behavior - - hardly the attributes necessary to plan for the future of any child. Moreover, the opinion of Kenneth Lau - - AM's longtime therapist - - differs only in degree, not in kind, from Dr. Pogge's view. Lau agreed that AM posed a significant risk to commit deviant acts, although he characterized the risk as low to moderate.

Thus, here, as in Jaquan and Nathaniel T., despite the diligent efforts of DSS, AM failed to demonstrate that he had sufficiently profited from those efforts or from his treatment to be able to plan for his Children's future. The conclusion is thus inescapable; the Petitioner, as far as AM is concerned, has proven by clear and convincing evidence that the Children are permanently neglected.

BT.

Unfortunately for this family, AM's unfitness was not the only factor that stood in the way of the Parents' ability to plan for and ultimately provide a safe home for their Children. Their mother, BT, also showed that she was not up to the task. While AM, who has known BT for over ten years, described her to Detective Formosa as "retarded", no evidence of mental retardation of BT was adduced at the Hearing. However, her observed behavior appeared to be indicative of a person with intellectual and behavioral challenges. As recounted by case workers Fernandez and Jeffers, who observed numerous supervised visits, BT simply lacked the ability to function as a parent to her Children; in terms of the essential qualities of supervision, discipline or meaningful communication with Jeremy and Virginia, she proved sadly lacking.

As both Fernandez and Jeffers testified, when the Children arrived for their visits, BT did little more than retreat to the kitchen area to prepare a meal. At the conclusion of the Hearing, BT's attorney made much of the fact that with respect to her Children, BT did everything that she was technically required to do, and the testimony so reflects, but only to a point. Indeed, BT's dutiful behavior during the supervised visitation proves too much. True, she appeared for all supervised visits; she brought the Children gifts, particularly candy - - sometimes to the consternation of the social workers supervising the visits. However, as the testimony of Fernandez and Jeffers both reflect, BT did not and, in their view, could not progress beyond the ephemeral level of simply physically being where she was supposed to be. Her interaction with her Children during visitation was minimal at best; she generally retreated to the kitchen area to prepare a meal, or took numerous photos of the Children with and without AM. Attempts by her to discipline the Children invariably ended badly - - tantrums all around - - and while often encouraged to play with the Children, she mostly became self-absorbed in the play event and would not or could not consistently involve the Children in any meaningful way. While, as the saying goes, fifty percent of life may be just showing up, parenting and providing a stable home requires more. BT's action, or lack thereof, showed that during the time period at issue, she was [*17]incapable of doing either in any meaningful way.

In addition, as Jeffers and Fernandez both opined, BT's observed inability to meaningfully interact with, much less supervise and manage the activities of her Children, proved particularly problematic in view of the background and potential for untoward behavior of her co-caregiver AM. The witnesses saw no indication on BT's part that she could or would be able to control AM or serve, at the very least, as an alarm bell to the proper authorities should his deviant propensities again manifest themselves. In that regard, the behavior of BT as witnessed by Jeffers shortly after AM engaged in public lewdness was telling. When asked about this incident by Jeffers, rather than express concern toward her Children and the impact that such an event may have upon them, she laughed; she thought the incident and AM's conduct was "funny" and even brought the newspaper article depicting the incident to her Children's school. To describe her reaction to such conduct by the father of her Children as unusual or inappropriate would be a vast understatement; rather, it confirmed Jeffers' view that BT had learned little or nothing from the supervised visitations and would not or could not effectively plan for the future of her Children, without or with AM as her companion.

In short, based upon their observations of BT with her Children over a period of many months, and despite the diligent efforts of DSS, the unanimous conclusion of the case workers who observed the family during the months of supervised visits was that BT was at once incapable of caring for the Children alone and could not or would not ever have the ability to control any problematic - - and potentially threatening - - conduct toward the Children by AM.

In similar circumstances, where a parent has failed to progress for one or more of a variety of reasons to the point where he or she could not plausibly be perceived as having the potential to provide a stable home for his or her children, courts have not hesitated to declare such children permanently neglected by reasons of that parent's inability to plan for their future. The reason for such parental shortcomings - - be it lack of mental capacity, drug addiction, or alcohol dependancy, to name a few - - are of no moment. The judicial inquiry is focused upon the behavior observed during the statutory period, and centers on whether that behavior reflects a potential to independently serve as a parent and provide a stable home. Absent such potential, the courts have no recourse but to find permanently neglect and ultimately terminate parental rights, thereby freeing the children from the limbo of foster care.

Thus, Courts have not hesitated to find that a parent has permanently neglected the child by failing to plan for the child's future when the parent, despite diligent participation in all the visitation, therapy and programs made available to him or her, has failed to profit from or progress as a result of them. When after having participated in all such activities, the parent nonetheless failed to gain insight into the reasons for the "behavior that has led to the family's current circumstances" (Matter of Galeann F., 11 AD3d 255 (1st Dept. 2004), and exhibits no attributes that would lead the Court to conclude that he or she was capable of independently caring for her children, a finding of permanent neglect is justified. As the First Department stated in Matter of Galeann F., 11 AD3d, 255 (1st Dept. 2004) in upholding the Family Court's Order terminating the mother's parental rights,

"Despite the agency's diligent efforts to encourage and strengthen the parental relationship by scheduling regular visitation and referring the mother to therapy and parenting skills programs, which she did attend, she nonetheless failed to gain insight into her behavior that [*18]has led to the family's current circumstances (see Matter of Nathaniel T., 67 NY2d 838, 842 [1986])."

Similarly, In the Matter of Jaquan Jomaine-Anthony V., 39 AD3d 868, (2d Dept. 2007) (discussed in more detail above), the Second Department affirmed the termination of parental rights on failure to plan grounds, holding that "[a]lthough the appellant attempted anger management counseling and completed a parenting skills course, the evidence demonstrated that he [the father] failed to gain insight into the issues which led to the removal of the subject child from his home." See also, e.g., In the Matter of Amy B., 37 AD3d 600 (2d Dept. 2007), In the Matter of Arelis Jasmin L., AD3d 433(1st Dept. 2007); Matter of Nathaniel T., 67 NY2d 838, 842 (1986).

In the instant case, the uncontroverted evidence - - particularly the testimony of the case workers who observed BT's behavior during every visit during the time period at issue - - plainly shows that BT at once failed to "gain insight" into the circumstances that contributed to the Children's removal - - particularly the potential threat to them posed by AM's history and conduct - - or to exhibit any ability to protect them or independately serve as a parent. BT's reaction to AM's recent arrest for another sexually related crime - - amusement and mirth rather than revulsion and concern for his Children's welfare - - speaks volumes, and confirms the opinion Fernandez and Jeffers that she would prove unable to safeguard her children from AM should such need arise. Moreover, BT's inability to meaningfully interact with her Children during visits underscored Fernandez and Jeffer's view that BT was simply unable, despite her efforts to comply with all of their directives, to provide a suitable and safe home environment for her Children.

Conclusion.

In short, based upon the testimony of the witnesses and the documentary evidence adduced at the Hearing, the Court finds that Petitioner has met its burden of proving by clear and convincing evidence that the Children Jeremy and Virginia are adjudicated permanently neglected children under § 384-b of the Social Services Law. All parties are directed to appear on June 8, 2012 at 2:00 p.m. in Courtroom 202 for the scheduling of the dispositional hearing.

The foregoing constitutes the Decision and Order of this Court.

Dated: White Plains, New York

May 10, 2012

Hon. John P. Colangelo

Acting Family Court Judge