| Matter of Jonathan J. |
| 2008 NY Slip Op 00022 [47 AD3d 992] |
| January 3, 2008 |
| Appellate Division, Third Department |
| In the Matter of Jonathan J., a Child Alleged to be PermanentlyNeglected. Broome County Department of Social Services, Respondent; Leslie J.,Appellant. |
—[*1] Thomas P. Coulson, Broome County Department of Social Services, Binghamton, forrespondent. Norbert A. Higgins, Law Guardian, Binghamton.
Mercure, J.P. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered February 20, 2007, which, among other things, granted petitioner's application, in aproceeding pursuant to Social Services Law § 384-b, to revoke a suspended judgment andterminate respondent's parental rights.
Respondent is the father of the subject child (born in 2000), who has been in foster care sincepetitioner removed the child from the mother's care with her consent in September 2003.Respondent admits that he was incarcerated from October 2003 until March 2007 upon hisconviction of attempted sexual abuse. In 2005, the child was adjudged to be permanentlyneglected after respondent and the mother, with the aid of counsel, admitted the allegationscontained within the permanent neglect petition. The judgment was suspended for 12 months.Thereafter, the mother's parental rights were terminated.[*2]
In October 2006, petitioner sought to terminate thesuspended judgment as to respondent. Petitioner argued that extension of the judgment, whichwas to expire approximately one week after the filing of the petition, was not warranted. FamilyCourt directed respondent to submit an affidavit in support of his request for a one-yearextension. Following a hearing, the court found that there were no exceptional circumstanceswarranting extension of the suspended judgment, terminated respondent's parental rights andordered the child to be freed for adoption. Respondent appeals and we now affirm.
The purpose of a suspended judgment is to give "[p]arents found to have permanentlyneglected a child . . . a second chance, where the court determines it is in the child'sbest interests, but that opportunity is strictly limited in time" (Matter of Michael B., 80NY2d 299, 311 [1992] [citation omitted]). As respondent concedes, the maximum duration of asuspended judgment is one year unless "exceptional circumstances" require extension of thejudgment for one additional year (Family Ct Act § 633 [b]; see Matter of MichaelB., 80 NY2d at 311). In that regard, "[a] parent's attempt to comply with the literalprovisions of the suspended judgment is not enough; rather[,] the parent must demonstrate thatprogress has been made to overcome the specific problems which led to the removal of the child"(Matter of Jennifer VV., 241 AD2d 622, 623 [1997]; see Matter of Frederick MM., 23 AD3d 951, 953 [2005]; Matterof Travis A., 4 AD3d 632, 633-634 [2004], lv denied 2 NY3d 706 [2004]).
Here, while respondent did comply with the provision of the suspended judgment requiringthat he obtain sex offender treatment while in prison, there is no indication in the record that hebenefitted from that counseling or made meaningful progress to overcome the problemspreventing return of the child. Respondent remained incarcerated at the time of the requestedextension and, immediately upon his release, planned on living at a shelter where children are notallowed. Furthermore, he admitted that he was likely to be classified as a risk level three sexoffender, prohibiting him from having contact with children. While respondent speculated that awaiver may be available to allow him to take custody of the child—whom he had not seenin three years—he presented no proof that such a waiver had been granted. In light of theforegoing, we cannot say that Family Court abused its discretion in determining that there are noexceptional circumstances warranting extension of the suspended judgment and we agree thattermination of respondent's parental rights is in the child's best interests (see Matter ofFrederick MM., 23 AD3d at 953; Matter of James E., 17 AD3d 871, 874 [2005]; Matter of Onelio Olvein Elijah VidalOndalis Santiago C., 13 AD3d 95, 96 [2004]; cf. Matter of Amber AA., 301AD2d 694, 696-698 [2003]).
Peters, Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the order is affirmed,without costs.