| Matter of Christopher C. |
| 2009 NY Slip Op 00205 [58 AD3d 622] |
| January 13, 2009 |
| Appellate Division, Second Department |
| In the Matter of Christopher C. Forestdale, Inc., et al.,Respondents; Concetta L., Appellant. |
—[*1] John R. Eyerman, New York, N.Y., for respondent Forestdale, Inc. Steven Banks, New York, N.Y. (Tamara Steckler and Patricia Colella of counsel), attorneyfor the child.
In a proceeding pursuant to Social Services Law § 384-b, inter alia, to terminateparental rights on the ground of permanent neglect, the mother appeals, as limited by her brief,from so much of an order of fact-finding and disposition of the Family Court, Queens County(Richroath, J.), dated October 23, 2007, as, upon a decision dated September 24, 2007, madeafter fact-finding and dispositional hearings, found that she permanently neglected the subjectchild, terminated her parental rights, and transferred custody and guardianship of the childjointly to the Commissioner of the New York City Administration for Children's Services andthe petitioner Forestdale, Inc., for the purpose of adoption.
Ordered that the order of fact-finding and disposition is 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 child to the Commissioner of the New YorkCity Administration for Children's Services and the petitioner Forestdale, Inc., for the purpose ofadoption; as so modified, the order of fact-finding and disposition is affirmed insofar as appealedfrom, without costs or disbursements, the finding of permanent neglect remains in effect, and thematter is remitted to the Family Court, Queens County, for a new dispositional hearing and newdisposition thereafter with respect to the appellant in accordance herewith.
The Family Court properly concluded that a finding of permanent neglect against the motherwas warranted because, although the presentment agency made diligent efforts to assist and[*2]encourage a meaningful relationship between her and thesubject child, the mother failed to avail herself of such efforts or plan for the child's future for aperiod of more than one year, from approximately June 2001 through September 2002 (seeSocial Services Law § 384-b [7] [c]; Matter of Deajah Shabri T., 44 AD3d 1060, 1061 [2007]; Matter of Ailayah Shawneque L., 40AD3d 1097, 1098 [2007]; Matterof Jennifer R., 29 AD3d 1005 [2006]). As such, the finding of permanent neglect issupported by clear and convincing evidence (see Social Services Law § 384-b [7][a]; Matter of Pedro C., 55 AD3d475 [2008]).
Nevertheless, the testimony adduced at the dispositional hearing reveals that, although themother did not avail herself of agency services for more than one year, she began to comply withall agency requirements in October 2002 and continued to make significant strides in improvingher relationship with her son through July 17, 2007, the date of the dispositional hearing. In fact,the agency caseworker testified that the mother had done everything the agency had asked her todo in order to regain custody of her son. Under these circumstances, we conclude that the FamilyCourt's disposition terminating the mother's parental rights was unwarranted (see Matter of Shaquill Dywon M., 50AD3d 1142, 1144 [2008]; Matter of Hannah D., 292 AD2d 867 [2002]; Matterof Princess C., 279 AD2d 825, 828 [2001]).
Instead, the Family Court should have suspended judgment for one year, at which point itwould have been in a better position to evaluate the mother's progress and to determine whetherthe child's best interests would be better served by his return to the custody of the mother (seeSocial Services Law § 384-b [1] [a] [ii]; Family Ct Act § 631 [b]; Matter ofSociety for Seamen's Children v Jennifer J., 208 AD2d 849 [1994]). However, since morethan one year has elapsed since the dispositional hearing was held, the entry of a suspendedjudgment at this time would not be prudent (see Family Ct Act § 633; Matterof Shaquill Dywon M., 50 AD3d at 1144).
Accordingly, we remit the matter to the Family Court, Queens County, for a newdispositional hearing, after which the court shall determine whether the mother has been able tofind suitable housing (see Matter of Jamie M., 63 NY2d 388, 394 [1984]; Matter of Joshua R., 2 AD3d 528,529 [2003]) and has made sufficient strides in strengthening her relationship with her son, orwhether, in light of her present circumstances and those of the child—whose desiresshould be explored—the best interests of the child would require a termination of parentalrights (see Matter of Hannah D., 292 AD2d 867 [2002]; Matter of Alexis E., 272AD2d 935, 936 [2000]). Florio, J.P., Covello, Balkin and Leventhal, JJ., concur.