| Matter of Darren V. |
| 2009 NY Slip Op 03529 [61 AD3d 986] |
| April 28, 2009 |
| Appellate Division, Second Department |
| In the Matter of Darren V., a Child Alleged to be PermanentlyNeglected. Orange County Department of Social Services, Respondent; Lori W. et al.,Appellants. (Proceeding No. 1.) In the Matter of Devan V., a Child Alleged to be PermanentlyNeglected. Orange County Department of Social Services, Respondent; Lori W. et al.,Appellants. (Proceeding No. 2.) |
—[*1] Warren S. Hecht, Forest Hills, N.Y., for appellant Ronald V. David L. Darwin, County Attorney, Goshen, N.Y. (Stephen Toole of counsel), forrespondent. Arza Feldman, Uniondale, N.Y., attorney for the children.
In related proceedings pursuant to Social Services Law § 384-b and Family Court Actarticle 6 to terminate parental rights on the ground of permanent neglect, the mother appeals, andthe father separately appeals, from an order of disposition of the Family Court, Orange County(Currier-Woods, J.), dated August 31, 2007, which, after a hearing, revoked a suspendedjudgment of the same court (Kiedaisch, J.) dated September 13, 2005, as extended by an order ofthe same court dated April 26, 2006, upon a determination that they violated the terms andconditions thereof, terminated their parental [*2]rights, andtransferred the custody and guardianship of the subject children to the Orange CountyDepartment of Social Services for the purpose of adoption.
Ordered that the order of disposition is affirmed, without costs or disbursements.
If a neglectful parent has failed to comply with the terms and conditions of a suspendedjudgment, the Family Court is permitted to terminate his or her parental rights as long asnoncompliance has been demonstrated by a preponderance of the evidence (see Matter of James E., 17 AD3d871, 873-874 [2005]; Matter of Jonathan P., 283 AD2d 675, 676 [2001]; Matterof Kaleb U., 280 AD2d 710, 712 [2001]). When determining compliance with a suspendedjudgment, it is the parent's obligation to "demonstrate that progress has been made to overcomethe specific problems which led to the removal of the child" (Matter of Jennifer VV., 241AD2d 622, 623 [1997]; see Matter ofFrederick MM., 23 AD3d 951, 953 [2005]; Matter of James E., 17 AD3d at874). Significantly, "[a] parent's attempt to comply with the literal provisions of the suspendedjudgment is not enough" (Matter of Jennifer VV., 241 AD2d at 623). Moreover,compliance with the terms of a suspended judgment may, but does not necessarily, lead todismissal of the termination petition (see Matter of Michael B., 80 NY2d 299, 311[1992]; Matter of Jonathan B., 5AD3d 477, 479 [2004]; Matter of Saboor C., 303 AD2d 1022, 1023 [2003]).
Here, while the appellants made some efforts to comply with the conditions of the suspendedjudgment, the Family Court properly determined that they failed to show the required progress incertain problem areas (see Matter of Michael B., 80 NY2d at 311; Matter of JenniferVV., 241 AD2d at 623; Matter of Frederick MM., 23 AD3d at 953; Matter ofJames E., 17 AD3d at 874). Specifically, the Family Court correctly determined that theappellants' failure to attend four of six possible visits during a six-week period constituted aviolation of one of the terms of the suspended judgment, which required them to attend "90% ofall scheduled visitation" during the period of the suspended judgment. Further, the evidence alsodemonstrated that the parents failed to attend the majority of school and doctor appointmentspertaining to the subject children.
Based on the foregoing, the appellants failed to demonstrate that progress had been made toovercome one of the specific problems which led to the removal of the subject children, that is,their failure to maintain contact with the children so as to demonstrate their ability to take fullresponsibility as the children's primary caretakers (see Matter of Jennifer VV., 241AD2d at 623; Matter of Kenneth A., 206 AD2d 602, 604 [1994]). The evidencepresented at the violation hearing demonstrated by a preponderance of the evidence that theappellants failed to satisfy certain conditions of the suspended judgment (see Matter of Carolyn F., 55 AD3d832 [2008]; Matter of Aaron S.,15 AD3d 585, 586 [2005]). Accordingly, revocation of the suspended judgment waswarranted (see Matter of Michael C.,4 AD3d 423, 424 [2004]; Matter of Francisco Anthony C.F., 305 AD2d 410[2003]; Matter of Judith D., 307 AD2d 311 [2003]).
We reject the appellants' contention that the Family Court failed to conduct a dispositionalhearing since "a hearing on a petition alleging the violation of a suspended judgment is part ofthe dispositional phase of a permanent neglect proceeding" (Matter of Saboor C., 303AD2d at 1023; see Matter of SeandellL., 57 AD3d 1511 [2008]). Thus, the Family Court may enforce a suspended judgmentwithout the need for a separate dispositional hearing, particularly where, as here, the court haspresided over prior proceedings from which it became acquainted with the parties, and the recordshows that the court was aware of and considered the children's best interests (see Matter of Christyn Ann D., 26AD3d 491, 493 [2006]; Matter of Seandell L., 57 AD3d at 1511; Matter of Jordan Amir B., 15 AD3d477, 479 [2005]). In freeing the children [*3]for adoption,the Family Court properly considered the best interests of Darren V. and Devan V., born in 2002and 2003, respectively, including that they have spent all or substantially all of their lives infoster care, and the appellants have not demonstrated their ability to ameliorate the problems thatled to their placement (see Matter ofDaevon Lamar P., 48 AD3d 469, 470 [2008]; Matter of Jennifer R., 29 AD3d 1005, 1007 [2006]; Matter of Kianna Maria L., 26 AD3d166, 167 [2006]). Thus, the evidence supports the further determination of the Family Courtthat termination of the appellants' parental rights is in the children's best interests (seeFamily Ct Act § 631; Social Services Law § 384-b [1] [b]; Matter of StarLeslie W., 63 NY2d 136, 147-148 [1984]; Matter of Joshua T., 25 AD3d 806, 807 [2006]; Matter of Carlos D. 24 AD3d1263 [2005]; Matter of Aaron S.,15 AD3d 585, 586 [2005]; seealso Matter of Michael C., 4 AD3d 423, 424 [2004]). Skelos, J.P., Fisher, Miller andEng, JJ., concur.