| Matter of Jessica J. |
| 2007 NY Slip Op 07793 [44 AD3d 1132] |
| October 18, 2007 |
| Appellate Division, Third Department |
| In the Matter of Jessica J. and Others, Children Alleged to bePermanently Neglected. Delaware County Department of Social Services, Respondent; Elise J.,Appellant. |
—[*1] F. Gerald Mackin, Delaware County Department of Social Services, Delhi, for respondent. David C. Roosa, Law Guardian, Bainbridge.
Spain, J. Appeal from an order of the Family Court of Delaware County (Becker, J.), enteredNovember 22, 2006, which granted petitioner's application, in a proceeding pursuant to SocialServices Law § 384-b, to revoke a suspended judgment, and terminated respondent'sparental rights.
In March 2006, respondent's three minor children (born in 1990, 1992 and 1995) wereadjudicated permanently neglected children (see Social Services Law § 384-b)based upon respondent's admissions to findings of permanent neglect and her consent to atermination order with a six-month suspended judgment subject to conditions to which she alsoagreed. Pursuant thereto, Family Court entered an order of suspended judgment againstrespondent effective until September 2006. Thereafter, in July 2006, petitioner filed a petitionalleging that respondent had violated the terms and conditions of the order of suspendedjudgment, and seeking termination of respondent's parental rights. The court initially extendedthe prior order of suspended judgment until October 2006. After a hearing, the court found, by apreponderance of the evidence, that [*2]respondent had willfullyviolated several of the conditions of the suspended judgment, and terminated respondent'sparental rights. Respondent now appeals.
Respondent's assertion that the order of suspended judgment is unenforceable because it wasnot made in compliance with the mandates of 22 NYCRR 205.50 (b) is without merit. Notably,this issue was not raised in Family Court and is, therefore, unpreserved (see Matter of KimShantae M., 221 AD2d 199, 199 [1995]). In any event, 22 NYCRR 205.50 (b) directs that anorder of suspended judgment must contain a written statement alerting the respondent to thepossible consequences of his or her failure to obey the order. However, it has also been held that,notwithstanding an omission of this nature, the terms of a suspended judgment are still bindingwhere, as here, the court's finding of permanent neglect is based on the respondent's ownadmissions and the parties stipulate or consent to the terms of the suspended judgment (seeMatter of Angela LL., 287 AD2d 823, 825 [2001]; see also Matter of Dutchess CountyDept. of Social Servs. v Judy M., 227 AD2d 478, 479 [1996]; Matter of David MichaelJ., 206 AD2d 867, 867 [1994]).
We also find lacking in merit respondent's assertion that the order of suspended judgmentfurther violates the mandates of 22 NYCRR 205.50 (b) in that it fails to set forth a visitationplan. Although in our view a detailed written set of directions to respondent in the suspendedjudgment would have been preferable, the written direction that respondent follow the visitationprovisions in the "Service Plan" was sufficient.
We also reject respondent's contention that her failure to comply with the terms of thesuspended judgment was petitioner's fault, in that petitioner failed to make diligent efforts tostrengthen her relationship with her children (see Social Services Law § 384-b [7]).While "the threshold inquiry by the court in any neglect proceeding must be whether the agencyexercised diligent efforts to strengthen the parental relationship" (Matter of Star LeslieW., 63 NY2d 136, 142 [1984]), "the requirement that petitioner make diligent efforts toreunite the family does not demand that petitioner relieve respondent of all initiative andresponsibility for making the plan work" (Matter of Chuck PP., 158 AD2d 859, 861[1990], lv denied 75 NY2d 710 [1990]). Moreover, where a court finds, by apreponderance of the evidence, that a parent has failed to comply with the legitimate terms andconditions of a suspended judgment, that parent's rights may be terminated (see Matter ofMichael B., 80 NY2d 299, 311 [1992]; Matter of Frederick MM., 23 AD3d 951, 952 [2005]; Matter of James E., 17 AD3d 871,874 [2005]; Matter of Travis A., 4 AD3d 632, 633-634 [2004], lv denied 2 NY3d706 [2004]; Matter of Kaleb U., 280 AD2d 710, 712 [2001]).
Here, Teresa Wolfinger, a supervising caseworker employed by petitioner, testified thatpetitioner encouraged respondent to find a counselor by providing her with names and contactphone numbers, and offered to provide transportation and even to pay for an independentcounselor of respondent's choice. Wolfinger also testified regarding visitation, stating thatpetitioner has provided counseling and other services to the children and that, despite petitioner'sfrequent encouragement to visit with respondent, the children consistently refused, citing a visitwherein respondent got into a verbal altercation with her sister. Furthermore, petitioner offeredthree letters sent to respondent which detail various attempts to engage respondent in the servicesnecessary to complete her goals pursuant to the suspended judgment. Significantly, respondenttestified that, contrary to the terms of the suspended judgment, she had not arranged forindependent counseling, still resided with her parents, and failed to apply for public assistance orobtain employment. On the issue of employment, Wolfinger's and respondent's testimony [*3]revealed that she did not attempt to follow up on the few jobapplications that she filled out, which respondent attributed to lack of transportation. However,the parent aide assigned to respondent's case testified, on the issue of transportation, that she toldrespondent that she would drive her to job interviews as needed. Thus, the preponderance of theevidence demonstrated that petitioner did make efforts to reunite the family and that it wasrespondent's willful failure to comply with the terms of the suspended judgment, coupled withher previous admissions resulting in the finding of permanent neglect, that resulted in thetermination of her parental rights (see Matter of Star Leslie W., 63 NY2d at 142;Matter of Jamie M., 63 NY2d 388, 393 [1984]; Matter of Henry YY., 171 AD2d969, 970-971 [1991]; cf. Matter of Amber W., 105 AD2d 888, 890-891 [1984]).Accordingly, Family Court's decision that it was in the children's best interests to terminaterespondent's parental rights and free the children for adoption should be upheld (see Matter ofMichael B., 80 NY2d at 311; Matter of Frederick MM., 23 AD3d at 952; Matterof James E., 17 AD3d at 874; Matter of Travis A., 4 AD3d at 633-634; Matter ofKaleb U., 280 AD2d at 712).
We have considered respondent's remaining contentions and find them unavailing.
Mercure, J.P., Peters, Carpinello and Kane, JJ., concur. Ordered that the order is affirmed,without costs.