| Matter of Shaquill Dywon M. |
| 2008 NY Slip Op 04090 [50 AD3d 1142] |
| April 29, 2008 |
| Appellate Division, Second Department |
| In the Matter of Shaquill Dywon M., Also Known as Shaquill M.Lakeside Family and Children's Services, Inc., Respondent; Shaquana Nicole M., Also Known asShaquana M., Appellant. (Proceeding No. 1.) In the Matter of Shanyia M. Lakeside Family andChildren's Services, Inc., Respondent; Shaquana Nicole M., Also Known as Shaquana M.,Appellant. (Proceeding No. 2.) |
—[*1] Jeremiah Quinlan, Hastings-on-Hudson, N.Y. (Daniel Gartenstein of counsel), forrespondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and Amy Hausknecht of counsel),attorney for the children.
Motion by the respondent, on appeals from two orders of fact-finding and disposition of theFamily Court, Kings County (one as to each child), both dated June 9, 2006, inter alia, to amenda decision and order of this Court dated October 30, 2007 (see Matter of Shaquill Dywon M., 44 AD3d 1047 [2007]).
Upon the papers filed in support of the motion, it is
Ordered that the branch of the motion which is to amend the decision and order is granted,and the motion is otherwise denied; and it is further,
Ordered that the decision and order of this Court dated October 30, 2007, in theabove-entitled matter is recalled and vacated, and the following decision and order is substitutedtherefor:[*2]
In two related proceedings pursuant to Social ServicesLaw § 384-b to terminate the mother's parental rights on the ground of permanent neglect,the mother appeals from two orders of fact-finding and disposition of the Family Court, KingsCounty (Lim, J.) (one as to each child), both dated June 9, 2006, which, after fact-finding anddispositional hearings, found that she had permanently neglected the subject children, terminatedher parental rights, and transferred custody and guardianship of the children to the petitioner andthe Commissioner of Social Services of the City of New York for the purpose of adoption.
Ordered that the orders of fact-finding and disposition are modified, on the facts and in theexercise of discretion, by deleting the provisions thereof terminating the mother's parental rightsand transferring custody and guardianship of the children to the petitioner and the Commissionerof Social Services of the City of New York for the purpose of adoption; as so modified, theorders of fact-finding and disposition are affirmed, without costs or disbursements, the findingsof permanent neglect remain in effect, and the proceedings are remitted to the Family Court,Kings County, for a new dispositional hearing and new dispositions thereafter in accordanceherewith.
"In section 384-b, the Legislature has placed primacy on the child remaining with the naturalparent, because it found both that the child's needs are usually best met in the natural home andthat parents are generally entitled to bring up their own children. The State's first obligation is tohelp the family stay together (Social Services Law § 384-b [1] [a] [ii], [iii])" (Matter ofJoyce T., 65 NY2d 39, 47 [1985]). In a proceeding to terminate parental rights based uponpermanent neglect, the threshold consideration is whether the presentment agency discharged itsstatutory obligation to exercise diligent efforts to encourage and strengthen the parentalrelationship (see Social Services Law § 384-b [7]; Matter of Jamie M., 63NY2d 388, 390 [1984]; Matter ofDarlene L., 38 AD3d 552, 554-555 [2007]).
In the case at bar, the Family Court concluded that the termination of parental rights waswarranted because, although the presentment agency made diligent efforts to assist andencourage a meaningful relationship between the mother and her children, the mother failed toavail herself of such efforts or plan for the children's future (see Social Services Law§ 384-b [7] [c]; Matter of AilayahShawneque L., 40 AD3d 1097 [2007], lv denied 9 NY3d 806 [2007]; Matter of Jennifer R., 29 AD3d1005 [2006]). However, the testimony adduced at the fact-finding hearing reveals that themother did make significant strides toward strengthening her parent-child relationships duringthe subject time period (see Matter ofMoniea C., 9 AD3d 888 [2004]; Matter of Zachary CC., 301 AD2d 714 [2003]).
For example, although there is concern that the mother was chronically late in arriving forvisitation, and that she missed some of her scheduled visits, nevertheless, the caseworkerconsidered the mother to be in compliance with the agency-formulated service plan for much ofthe [*3]designated period of neglect. Indeed, in September 2004the caseworker congratulated the mother on her completion of the service plan, which includedvisitation with the children, having an income, and obtaining public assistance, as well as on hersuccessful completion of a 22-week parenting skills program, and for being generally cooperativewith the caseworker. In addition, the mother provided proof of suitable housing for her and thechildren—a two-bedroom apartment in a building owned by her father.
Given these circumstances, we conclude that the termination of the mother's parental rightswas unwarranted (see Matter of Hannah D., 292 AD2d 867 [2002]; Matter of PrincessC., 279 AD2d 825 [2001]). Instead, the Family Court should have suspended judgment forone year, at which point it would have been in a better position to evaluate the mother's progressand to determine whether the children's best interests would be endangered by their return to thecustody of the natural mother (see Social Services Law § 384-b [1] [a] [ii];Matter of Society for Seamen's Children v Jennifer J., 208 AD2d 849 [1994]).
Since more than one year has elapsed since the dispositional hearing was held, the entry of asuspended judgment at this time would be imprudent (see Family Ct Act § 633).Accordingly, we remit the matter to the Family Court, Kings County, for a new dispositionalhearing. Following such hearing, the court shall determine, among other things, whether themother met the appropriate conditions outlined in 22 NYCRR 205.50, prior to the issuance of thetwo orders dated June 9, 2006, and more specifically, whether she had been able to build uponher apparent successful beginning in forging a healthy relationship with her children up to thattime, or whether, in light of her present circumstances and those of the children, the best interestsof the children would require a termination of parental rights (see Matter of Hannah D.,292 AD2d 867 [2002]; Matter of Alexis E., 272 AD2d 935 [2000]). Ritter, J.P.,Santucci, Miller and Dillon, JJ., concur.