Matter of Destine G.

[*1] Matter of Destine G. 2007 NY Slip Op 52541(U) [18 Misc 3d 1135(A)] Decided on December 4, 2007 Family Court, Monroe County Ruhlmann, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 4, 2007
Family Court, Monroe County

In the Matter of Commitment of Guardianship and Custody of Destine G. A Child under the Age of Eighteen Years Alleged to be Permanently Neglected by Rozzie G., Respondent.



B-09089-06



APPEARANCES:

Monroe County Law Department, by Peter A. Essley, Esq., for Petitioner

Monroe County Public Defender's Office, by Adele M. Fine, Esq., for Respondent

Carolyn L. Chase, Esq., Law Guardian

Dandrea L. Ruhlmann, J.

Monroe County Department of Human Services (Petitioner) filed two petitions on July 18, 2006 pursuant to Social Services Law § 384-b for termination of the parental rights of Rozzie G. (Respondent), alleging that Respondent both permanently neglected (Docket No. B-09091-06) and is unable to provide proper and adequate care for her two-year-old biological daughter Destine (DOB -//) by reason of mental illness (Docket No. B-09089-06). Petitioner opted not to pursue its petition alleging mental illness as it did not produce testimony of a qualified psychiatrist or psychologist as required by Social Services Law

§ 384-b (6) (e). The petition under Docket No. B-09089-06 is therefore dismissed.[FN1]

Petitioner did prove by clear and convincing evidence however that Respondent permanently neglected Destine as she failed to both maintain adequate contact with Destine for a period of one year and plan for Destine's future despite Petitioner's diligent efforts to encourage same (Social Services Law § 384-b [7] [a]). The Court therefore approves Petitioner's proposed permanency goal for Destine as adoption.

Statement of Facts: [*2]

Respondent has a history of mental illness. There were previous neglect findings against her (NN-276/277-99; NN-682-01) and all four of her older children are not in her care.[FN2] At Destine's birth on February 23, 2005 Respondent was active with Monroe County Adult Protective Services. She signed a consent to Destine's temporary removal and three-day-old Destine was placed in the foster home of Nicholas and Christine K. on February 26, 2005. Respondent was then admitted to Rochester General Hospital Inpatient Psychiatric Clinic where she stayed until March 7, 2005.

By order entered September 8, 2005, this Court found that Respondent neglected Destine and Respondent was ordered to, inter alia, complete both mental health and substance abuse treatment and parenting classes, and visit weekly with Destine. The Court held a permanency planning hearing (PPH) on March 30, 2006 and approved the goal of return to parent. Petitioner then filed the current termination of parental rights (TPR) petition on July 18, 2006. Two PPHs followed on September 14, 2006 and March 15, 2007; Respondent defaulted at both hearings. By Permanency Order entered November 13, 2006, the Court approved the proposed permanency goal of adoption based in part upon Respondent's default. The proceeding was scheduled for a further PPH on September 5, 2007 at the same time the TPR proceeding was scheduled for trial. The Court held a dual trial/PPH and heard testimony from Petitioner's four witnesses: Caseworkers Teena Keokanya and Tamika Pollocks, Catholic Family Center caseworker Mike Megalo and

foster mother Christine K.; and from Respondent herself.

A.Visitation:

Teena Keokanya, a foster care intake worker, testified that she worked with Respondent from approximately February 25th until the first week in May 2005 and was responsible for setting the terms of Respondent's visitation with Destine. Supervised visitation was arranged for Respondent and Destine three times weekly Tuesday, Wednesday and Thursday from 10:00 until 11:00 a.m. at the Department. She chose these visitation times after consulting Respondent who informed her that she attends mental health counseling on Mondays and that Fridays were her "chore" day. Keokanya testified that by the end of February into March 2005, Respondent did not attend visits regularly; she either called to cancel visits or appeared late, sometimes only two minutes before the end of a scheduled visit. Beginning March 23, 2005 the visitation policy was amended and conditioned upon Respondent calling by 9:00 a.m. on each scheduled visitation day to confirm her attendance. Keokanya testified that Respondent was informed orally of this visitation policy but admitted that this condition was not in the visitation policy signed by Respondent on April 6, 2005 (Respondent's Exhibit A).

Although upon cross-examination Keokanya testified that the Court never approved the visitation policy, in fact on April 19, 2005 the parties consented to visitation every Tuesday and Wednesday from 10:00 to 11:30 a.m. conditioned upon Respondent calling first to confirm her attendance. The Court memorialized this agreement by order entered May 2, 2005. According to an undated and unsigned Visitation Schedule beginning July 15, 2005 visitation was changed to Fridays from 1:00 - 2:00 p.m. with the stipulation that Respondent call between 9:00 and 11:00 a.m. to confirm visitation (Respondent's Exhibit B).

Keokanya testified that she supervised seven (7) visits in total and that foster mother Christine K. transported Destine to all visits. Even though Keokanya provided Respondent [*3]with bus tokens at each visit, Respondent nonetheless missed six visits in March 2005; Keokanya supervised only four visits in April and none in May.

Keokanya testified that she observed Respondent exhibit inappropriate conduct during three of the seven visits she supervised. During one visit, although Respondent complained that Destine should be wearing an undershirt, she proceeded to pull down the zipper of Destine's jumper, leaving her exposed. On another visit Keokanya reminded Respondent not to kiss Destine's mouth as Respondent reported that she had a cold. On a third visit Respondent fell asleep and had to be alerted five times of the end of the visit. Keokanya did admit however that Respondent was responsive to most parenting suggestions.

Tamika Pollocks testified that she was the assigned caseworker from the second week in May 2005 until April 2007 and served as the primary supervisor of visits. Pollocks testified that one visit on June 23, 2005 occurred at the parking lot of World Wide News. She transported Destine there after Respondent called to inform her that her bus broke down and she would not be able to make it to the Department. Although in August 2005, Respondent requested a change in visitation asking the caseworker to check on Destine's nap time so that the time would not conflict, Pollocks testified that from September 2005 until June 2006 Respondent did not make any visits. Petitioner cancelled only one of the scheduled visits (on October 7, 2005) during that 10-month period of no visitation.

Christine K., a stay-at-home foster mother, testified that she has been Destine's primary caretaker since Destine was four days old. She is the only person responsible for Destine's transportation to visits. Each scheduled visitation day she calls the Department to see whether Respondent has confirmed her attendance at the visit; only if Respondent has confirmed a visit, she transports Destine to the Department. She testified that less than five visits occurred between July 2005 and July 2006. In contrast to Ms. K's credible testimony, Respondent's testimony regarding visitation was vague and incredible; she placed the entire blame on Petitioner for the missed visits.

B.Treatment Services and Caseworker Contact

Keokanya testified that when she had her initial contact with Respondent, Respondent informed her that she was already enrolled in mental health treatment and did not need a referral; yet Respondent never provided proof of appointments. On April 5, 2005 Respondent requested a change in the visitation schedule so as not to interfere with Respondent's quest for a General Educational Development (GED) degree; while Keokanya affirmed that a GED was a good goal Respondent's focus instead needed to be on her mental health treatment. Keokanya testified that she provided Respondent with bus tokens each time she came to a visit.

Pollocks testified that Respondent was required to complete mental health, substance abuse and parenting programs. She attempted to work with Respondent on the required services and spoke with Respondent whenever she could - at visits, in court and on the telephone - but that Respondent was both difficult to locate and did not believe that she had any problems. Pollocks testified that she first spoke with Respondent about services on June 23, 2005 when Pollocks brought Destine to the parking lot of World Wide News for visitation. Pollocks and Respondent discussed possible mental health referrals to St. Mary's or Strong but Respondent insisted that she was already receiving treatment at Park Ridge. Respondent never provided proof of mental health services or parenting classes; the only mental health evaluation received was completed immediately after Destine's birth when Respondent was in-patient at Rochester General Hospital Psychiatric Center. There were two outside agencies working on Respondent's case, including St. Mary's Mental Health Clinic and Catholic Family Center. Pollocks testified that she contacted Mike Megalo from Catholic [*4]Family Center - Respondent's adult protective worker - once a month to discuss Respondent's case (both Pollocks' case notes and Megalo's testimony indicate that Pollock first contacted Megalo in January 2006).

Pollocks' case notes are sparse: for 2005 they indicate an unsuccessful call to Respondent on June 6th; the visit in the World Wide news parking lot on June 23rd; no contact in July; three telephone calls in August; telephone contact to cancel a visit in October; and one telephone call in November. On October 31st Respondent left a note in Pollocks' office with a few telephone numbers requesting that Pollocks call her mother's residence: Pollocks' case notes indicate that she returned the call on December 2nd. In January, February and March 2006 Pollocks' notes indicate that Respondent initiated contact with her (in January to ask for a bus pass). Pollocks testified that she spoke with Tracy Epps from the Hope House regarding Respondent's case and on March 10, 2006, Pollocks discussed a mental health evaluation with a therapist at Unity Health Systems. According to Pollocks' case notes, Pollocks both called and sent a letter to Respondent in May 2006. Pollocks testified that she sent other letters to Respondent between May 2005 and May 2006 but she could not recall how many.

Pollocks testified that both monthly contact with a respondent and child and a six-month service plan review are required on all cases and that progress notes are designed to document reasonable efforts. While Pollocks admitted that her case notes do not reflect the required contact, she testified they are "not good notes" and do not show all the contact she had with Respondent. She asserted that she did not always stop to write down notes and did not record every telephone contact with Respondent because "[she] had so many." Pollocks testified that treatment conferences were held every six months. One particular conference was held on Wednesday, March 15, 2006 and although Respondent was invited to the conference, she did not attend. Ms. K. testified that she attended at least one conference in 2005 and more than one conference while Pollocks was the assigned caseworker and Respondent was absent. Pollocks testified that she supplied Respondent with monthly bus passes - the only time she did not supply her with a pass was when Respondent could not be located.

Adult Protective Worker Mike Megalo testified that he was assigned to Respondent's case from May 5, 2005 until June 30, 2006 as an adult preventative case manager. He served as Respondent's representative payee, handled her finances and attempted to keep her safe and stable in the community with appropriate housing. He made approximately five home visits to Respondent's East Main Street residence but attempted home visits twice monthly. His case notes indicate that on one scheduled home visit he found dirty dishes

with food residue and clothes strewn about throughout the apartment. He testified that Respondent contacted him weekly, always with housing issues and wishing to relocate. Between August 29 and September 13, 2005, Respondent was in-patient at St. Mary's Psychiatric Center; between October 2005 and January 2006, Respondent was in various emergency housing until she relocated to an apartment on University Avenue. Megalo once met Respondent outside of her apartment in February 2006 but between March and May 2006 he did not have any contact with her.

Respondent's social security check was dispersed to Respondent three times weekly by the receptionist in Megalo's office to enable Respondent to budget her money. Megalo testified that Respondent was verbally abusive to him and always "loud." Indeed, he stopped working with Respondent because they did not get along and were not achieving the desired result of "stable living."

Megalo testified that he had only telephone contact with Pollocks: the first contact in [*5]January 2006; his next contact with her was on February 3, 2006 when he left a message and she returned the call on February 17, 2006; and on May 1, 2006. He said he may have had other telephone contact with Pollocks as his case notes document only significant calls. He testified that he did converse monthly with Child Protective Services caseworker Jane Marchiano and conducted home visits with her.

Respondent's testimony was self-serving. She testified that although Pollocks was her caseworker for "[q]uite a while" she never referred her for either mental health or substance abuse evaluations and/or treatment. She testified that she lived at 146 University Avenue in 2005. At some point there was an emergency evacuation of her building and the Red Cross took all residents to a hotel and later to the Hope House. She testified that she was at the Hope house for three days and was never homeless. After the Hope House, she found an apartment at 400 Fernwood on August 30, 2006 (after the filing date of the TPR petition). She testified that Megalo handled her social security income and she advised him where she was living. She testified that she likewise apprised Pollocks and signed release forms for her treatment providers. Respondent testified that between February 2005 and July 2006 she saw Pollocks only once [FN3] in the parking lot at World Wide News.

Respondent testified that she was "in and out of all kinds of places" for mental health evaluations because caseworkers and Megalo would tell her different things. She said she had mental health evaluations on her own at several places including Park Ridge and Unity Health. She also did a couple of walk-ins to Evelyn Brandon for the chemical evaluations and "stuff like that." She testified that she completed two parenting classes through the Urban League and the Younger Years before Destine's birth and had prenatal care. She was also enrolled with Hillside Children's Services in a parenting class with Destine but that was discontinued when Destine was diagnosed with autism. She testified that Pollocks never responded to her or her parenting teacher.

Respondent testified that she was hospitalized at Strong Memorial Hospital for fifteen days after Destine's birth. She was directed to follow up with mental health treatment and to decide which out-patient clinic would be suitable. Although Respondent admitted that she sought out mental health treatment on her own at Park Ridge, she insisted that it is not possible that she rejected Pollocks' suggestion to investigate psychiatric treatment from St. Mary's or Strong. Respondent testified that Petitioner never helped her and that she is proud that she has managed it all on her own.

Statement of Law:

Permanently neglected children are children "who [are] in the care of an authorized agency and whose parent or custodian has failed for a period of more than one year. . . substantially and continuously or repeatedly to maintain contact with or plan for the future of the child[ren]. . . notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child[ren]" (Social Services Law § 384-b [7] [a]). To prove permanent neglect, Petitioner must establish by clear and convincing evidence that (1) it made diligent efforts to encourage or strengthen Respondent's relationship with her child but despite such efforts Respondent substantially and continuously or repeatedly (2) failed to plan for the future of her child or (3) failed to maintain contact with her child for a period of one year (see Matter of Star Leslie W., 63 NY2d 136, 142-143 [1984]; Social Services Law § 384-b [7] [a]). [*6]

I.Petitioner's "Diligent Efforts"

Petitioner must first establish by clear and convincing evidence that it provided "services and other assistance aimed at ameliorating or resolving the problems preventing [the child's] return to [Respondent]'s care" (Matter of Dakota S., 43 AD3d 1414 [4th Dept 2007] quoting Matter of Kayte M., 201 AD2d 835, 835 [3d Dept 1994], lv denied 83 NY2d 757 [1994]). The New York State Court of Appeals has defined "diligent efforts" to mean reasonable attempts by an authorized agency to assist, develop and encourage a meaningful relationship between the parent and child, including but not limited to (1) consultation and cooperation with the parents in developing a plan for appropriate services to the child and his family; (2) making suitable arrangements for the parents to visit the child; (3) provision of services and other assistance to the parents so that problems preventing the discharge of the child from care may be resolved or ameliorated; and (4) informing the parents at appropriate intervals of the child's progress, development and health (Matter of Sheila G., 61 NY2d 368, 384 [1984]).

Petitioner - in consult with Respondent - devised an appropriate plan for visitation and services. Keokanya testified that she discussed such plan with Respondent. She attempted to redirect Respondent to prioritize her need for mental health treatment over her goal to attain a GED. Keokanya also sought input from Respondent in arranging for visitation with Destine. Although Respondent argues that the visitation plan was contrary to law, the Court record reflects that Respondent, represented by counsel, agreed to the terms of the plan including the condition that Respondent call each visitation day to confirm her attendance (Court Order entered May 2, 2005). Respondent understood the terms of the visitation plan as she called to confirm her attendance for at least a few visits after the policy change. Petitioner continually provided Respondent with bus passes. Scheduling visits, providing transportation and discussing the consequences of failure to follow through with visits constitutes some evidence of "diligent efforts" (Matter of Roderick W., 96 AD2d 746, 747 [4th Dept 1983], lv denied 61 NY2d 602 [1983]; Matter of Chuck PP, 158 AD2d 859 [3d Dept 1990], lv denied 75 NY2d 710 [1990]). Further, both Pollocks and Ms. K testified that Uniform Case Review conferences regarding Destine were held every six months; although Respondent was informed of these conferences, she failed to attend thereby missing the opportunity to learn about Destine's progress, development and health (see Petitioner's Exhibit 8; Matter of Merle C.C., 222 AD2d 1061 [4th Dept 1995], lv denied 88 NY2d 802 [1996]).[FN4]

It is troublesome that Petitioner's case notes do not identify specific referrals for mental health and substance abuse treatment programs, yet this is not a case where Petitioner-agency did not provide any services (compare Matter of Joshua R. [Joseph R.], 2 AD3d 528 [3d Dept 2003] [agency failed to refer father for any services designed to address his needs]; Matter of Robert F., 195 AD2d 715 [3d Dept 1993] [agency failed to assist respondent with both transportation to visits and suitable housing]; Genesee County Dep't of Social Services v Kurt L., 178 Misc 2d 1045 [Fam Ct, Genesee County 1998] [agency did not prepare a service plan for respondent-father). Respondent has an extensive child protective history and was involved already with preventive services. She was assigned an adult protective worker Megalo who testified that he both assisted Respondent with her finances and housing and [*7]conducted home visits. Further, Respondent herself reiterated to both caseworkers Keokanya and Pollocks that she was actively involved in mental health services; rejecting Pollocks' referrals to St. Ann's and Strong since she insisted that she was already receiving treatment at Park Ridge. As Respondent admitted, she "was in and out of all kinds of places" for mental health and substance abuse treatment. She was proud that she arranged her own services, corroborating caseworker testimony that Respondent was resistant to assistance. Megalo testified that Respondent was difficult (compare Matter of Chuck PP, 158 AD2d 859, 860 [3d Dept 1990], lv denied 75 NY2d 710 [1990] [respondent-mother was strong-willed, doing what she pleased, when she pleased]). Indeed, Respondent's courtroom demeanor was erratic; she had some outbursts, her appearances were sporadic and she frequently exited the courtroom during testimony (see Matter of Caraballo v Colon, 9 AD3d 459 [2d Dept 2004]; Matter of Jeran PP, 6 AD3d 994 [3d Dept 2004] [courts affirmed family court decisions noting respondents' courtroom demeanor]; but see Matter of Raymond D., __ AD2d ___, 2007 NY Slip Op 08683 [4th Dept 2007] [court erred in drawing a negative inference from respondent's failure to appear for several days of testimony at the fact-finding hearing]).

Pollocks' sparse case notes were admittedly "not good notes." She maintained however that she spoke with Respondent more often than what was reflected in the notes. Pollocks' testimony that Respondent did not visit with Destine for a 14-month period explains, in part, the lack of notes (Matter of Angel P., __ AD3d __, 2007 NY Slip Op 07757 [1st Dept 2007] [respondent-mother's failure to visit her children or maintain contact with the agency explains the sparse entries in the agency's progress notes]). Although, as Respondent argues, Petitioner is in a superior position to Respondent and documentation is required as a means to determine whether Petitioner has used diligent efforts (Social Services Law § 409-f [1]; 18 NYCRR 428.5 [10] [v]; 18 NYCRR 430.12 [b]; 18 NYCRR 430.9 [b]), the Court neither intends - nor is it permitted - to assess whether a caseworker has kept an adequate uniform case record as required by Department regulations [FN5] (see generally Matter of Bobbijean P., __ AD3d __, 2007 NY Slip Op 07173 [4th Dept 2007] ["Family Court possesses only the power which is explicitly conferred on it by statute"]; Matter of Anne P.C. v Steven P, 17 Misc 3d 1107(A), 2007 NY Slip Op 51858(U) [Fam Ct, Monroe County 2007] ["Where the Legislature has not granted courts oversight on a specific issue, that authority remains with the administrative agency"]; cf. Matter of Starrtasia Ann W., 2 Misc 3d 1003(A), 2003 NY Slip Op 51714(U) [Fam Ct, Queens County 2003]). Here proof at trial in toto proved Petitioner's diligent efforts. In any event, Megalo's testimony both that Respondent contacted him weekly and located her SSI checks three times weekly at his office confirms that Respondent had the where with all to communicate by telephone and to get where she needed to go when it was important to her. Indeed, Megalo testified that Respondent was not shy in making her needs known.

The requirement that Petitioner make diligent efforts to reunite a family does not demand that Petitioner relieve Respondent of all initiative and responsibility for making a plan work (Matter of Chuck PP, supra at 861 [petitioner-agency did not have an affirmative duty to determine whether respondent-mother's low intellectual ability explained her inability to maintain contact with her son]). "The statute requires only reasonable attempts, by means of a diligent undertaking" (Matter of Jason Adonise M., __ AD3d __, 2007 NY Slip Op 07750 [1st Dept 2007]). Respondent informed Petitioner that she was receiving mental health treatment [*8]on her own accord, yet argues that Petitioner was not diligent in following up to discern whether she was actually attending. Petitioner recognized that Respondent's greatest challenge was her mental health and made the requisite effort to assist Respondent to ameliorate this deficit (compare Matter of Olivia L., 41 AD3d 1226 [4th Dept 2007] [holding that a TPR petition on the ground of mental retardation might be more appropriate than the permanent neglect petition filed where petitioner-agency did not mold its diligent efforts to assist respondent-parent]). Mental illness can serve as a basis for an adjudication of permanent neglect (Matter of Shannon C., 225 AD2d 1061 [4th Dept 1996]; cf. Matter of Christina H., 227 AD2d 898 [4th Dept 1996] [court erred in terminating respondent-mother's parental rights on the ground of permanent neglect where the petition did not refer to respondent-mother's mental retardation]). Even in Matter of Jah'lil Dale Emanuel McC

(__ AD3d __, 2007 NY Slip Op 08004 [1st Dept 2007]), where the agency failed to identify respondent-mother's mental illness as a problem preventing the return of her child, the court held that the agency made diligent efforts because respondent-mother therein received

psychiatric services to treat the disorder. Likewise here Respondent admitted she had knowledge of mental health providers and sought out the treatment she desired (whether she took full advantage of such treatment is a different issue).

II.Respondent's Contact with Destine

Petitioner has proven by clear and convincing evidence that Respondent has failed to maintain substantial and regular contact with Destine. "Evidence of insubstantial or infrequent contacts by a parent with his or her child permits a determination that such child is permanently neglected" (Matter of Roderick W., 96 AD2d 746 [4th Dept 1983], lv denied 61 NY2d 602 [1983] [where Respondent allowed weeks, and months, to pass without visiting his child]). Respondent failed to visit Destine for months at a time. Ms. K. was prepared to transport Destine to weekly visits, yet less than five such visits occurred over a one-year period. In fact, Pollocks testified that Respondent did not visit with Destine at all for a

solid ten months.

III.Respondent's Failure to Plan for Destine's Future

Despite Petitioner's diligent efforts as detailed above, Respondent failed to plan for Destine's future. Respondent "failed to address successfully the problems that led to the removal of the child and continued to prevent [her] safe return" (Matter of Kyle S., 11 AD3d 935 [4th Dept 2004], quoting Matter of Ja-Nathan F., 309 AD2d 1152 [4th Dept 2003]; see also Matter of Shanika F., 265 AD2d 870 [4th Dept 1999]; Matter of Rebecca D., 222 AD2d 1092 [4th Dept 1995]). Although Respondent insisted that she was participating in mental health treatment that she herself located, she failed to provide proof of the successful completion of such treatment. She likewise did not receive a substance abuse evaluation and/or treatment and did not complete a parenting class.

Respondent has been unable to provide any realistic and feasible alternative to having Destine remain in foster care. Destine has been in the home of her foster parents since she

was three days old. Despite adequate warning from Petitioner of the consequences of failing to plan, Respondent did not suggest any other potential resources (see Matter of Baby Girl C., 1 AD3d 593 [2d Dept 2003]). Indeed, Respondent failed to appear at the prior scheduled PPHs and on November 13, 2006 the Court thereby approved Petitioner's proposed permanency goal of adoption. The Court, upon weighing the testimony herein, again approves adoption as the permanency goal for Destine.

IV.Conclusion

Petitioner has met its burden in providing clear and convincing evidence that, despite its diligent efforts, Respondent failed both to maintain an adequate level of visitation and to [*9]plan for Destine's future. The Court has assessed of the credibility of the witnesses, in particular, the character and temperament of Respondent (see Matter of Kerensa D., 278 AD2d 878, 879 [4th Dept 2000], lv denied 96 NY2d 707 [2001]). Respondent shifts all responsibility to Petitioner and fails to accept and in any way ameliorate her circumstances allowing for the safe return of Destine. The Law Guardian too advocates that Respondent's parental rights should be terminated.

NOW THEREFORE, it is

ADJUDGED, based upon clear and convincing evidence, that Destine was permanently neglected by Respondent; and it is further

ORDERED that a dispositional hearing pursuant to Family Court Act § 631 will be scheduled.

Dated this 4th day of December, 2007, at Rochester, New York.

__________________________________

HON. DANDREA L. RUHLMANN

FAMILY COURT JUDGE

Pursuant to §1113 of the Family Court Act, an appeal must be taken within thirty days of receipt of the order by appellant in Court, thirty-five days from the mailing of the order to the appellant by the clerk of the Court, or thirty days after service by a party or law guardian upon the appellant, whichever is earliest. Footnotes

Footnote 1: A petition for termination of Respondent's parental rights on the ground of mental illness might have been the more appropriate petition to pursue under the circumstances of this proceeding (see Matter of Olivia L., 43 AD3d 1339 [4th Dept 2007]).

Footnote 2: Respondent's youngest son, Vincent (DOB: 4/26/07), was removed also from Respondent's care on April 30, 2007.

Footnote 3: Respondent testified that saw Pollocks in person twice - one occasion was in 2007 however - after the TPR petition was filed.

Footnote 4: The Court notes that issues regarding Destine's development are of upmost importance as she has been diagnosed with Autism, Trichotillimania, Prader-Willi Syndrome and Rett Syndrome.

Footnote 5:Violation by the Petitioner-agency of its own regulations may create a rebuttable presumption of a failure to assert diligent efforts, yet the Court's inquiry must not end there.