| Matter of Carlos R. |
| 2009 NY Slip Op 04333 [63 AD3d 1243] |
| June 4, 2009 |
| Appellate Division, Third Department |
| In the Matter of Carlos R., a Child Alleged to be PermanentlyNeglected. Tompkins County Department of Social Services, Respondent; Jaime S.,Appellant. |
—[*1] Joseph Cassidy, Tompkins County Department of Social Services, Ithaca, for respondent. Marlene Moberly, Law Guardian, Freehold.
Spain, J. Appeal from an order of the Family Court of Tompkins County (Sherman, J.),entered October 1, 2008, which granted petitioner's application, in a proceeding pursuant toSocial Services Law § 384-b, to adjudicate Carlos R. a permanently neglected child, andterminated respondent's parental rights.
Respondent (hereinafter the mother) is the mother of three children, one of whom is CarlosR. (born in 2006) (hereinafter the child). In August 2006, the child was determined to beneglected by the mother and was continued in the custody of petitioner. In December 2007, themother was found to have permanently neglected her other two children (hereinafter the child'shalf-siblings) and, as to those half-siblings, her parental rights were terminated. Petitioner didnot then seek to terminate the mother's parental rights as to the child reportedly because theagency, at that time, had been fostering reunification efforts with the child's father, whothereafter violated a condition of a felony treatment court and was incarcerated a week before theplanned return. Ultimately, the father surrendered his parental rights to the child. In February2008—just [*2]two months after the mother's parentalrights to the child's half-siblings had been terminated involuntarily due to permanentneglect—petitioner commenced this permanent neglect proceeding against her with regardto the child. Petitioner then moved for, among other things, an order relieving petitioner fromhaving to make reasonable efforts at reunification (see Family Ct Act § 1039-b [b][6]). Family Court granted petitioner's request without a hearing. After a fact-finding hearing, thecourt granted the petition finding that the mother had permanently neglected the child. After thesubsequent dispositional hearing at which her attorney advocated for a suspended judgment, thecourt terminated the mother's parental rights. The mother now appeals and we affirm.
Initially, in a permanent neglect proceeding, the petitioning agency must ordinarilydemonstrate that it exercised "diligent efforts to encourage and strengthen the parentalrelationship" (Family Ct Act § 614 [1] [c]; Social Services Law § 384-b [7] [a]; see Matter of Isaiah F., 55 AD3d1004, 1004-1005 [2008]; Matter ofShi'ann FF., 47 AD3d 1133, 1134 [2008]). However, Family Court may dispense withsuch requirement when "the parental rights of the parent to a sibling of such child have beeninvoluntarily terminated; unless the court determines that providing reasonable efforts would bein the best interests of the child . . . and would likely result in the reunification ofthe parent and the child in the foreseeable future" (Family Ct Act § 1039-b [b] [6];see Social Services Law § 358-a [3]; Matter of Marino S., 100 NY2d 361,372-373 [2003], cert denied sub nom. Marino S. v Angel Guardian Children & FamilyServs., Inc., 540 US 1059 [2003]). While the mother asserts that she was entitled to ahearing on the motion, the Family Ct Act does not explicitly mandate an evidentiary hearingprior to such a determination, and this Court has only required an evidentiary hearing on amotion to excuse reasonable efforts "when genuine issues of fact are created by the answeringpapers" (Matter of Damion D., 42AD3d 715, 716 [2007]).
Here, contrary to the mother's contention, an evidentiary hearing was not required becauseher answering papers raised no genuine issues of fact with respect to the relevant allegationsmade by petitioner in support of the motion (cf. Matter of Damion D., 42 AD3d at 716).Indeed, despite the fact that at the time of Family Court's decision on the motion the mother wasin a long-term substance rehabilitation program, her consistent past history of substance abuseand failed attempts at rehabilitation, as well as other failings along the way, provided the courtwith a sound basis for its decision.
We next reject the mother's contention that Family Court improperly excused petitioner'sreasonable efforts retrospectively, i.e., back to the prior order terminating the mother's parentalrights to the child's half-siblings. Under the current statutory framework, Family Court has theauthority to retrospectively and not merely prospectively excuse reasonable efforts where, ashere, the criteria set forth in the statute have been met (see Matter of Marino S., 100NY2d at 372-373). While the statute does not impose a temporal limit as to how long ago theprevious determination of permanent neglect—which is being relied upon—wasmade to absolve petitioner of its duty of diligent efforts (see Matter of Marino S., 293AD2d 223, 228-229 [2002], affd 100 NY2d 361 [2003]), this permanent neglect petitionwas filed only two months after the mother's parental rights to the half-siblings were terminated.Moreover, the record before us supports the conclusion that diligent efforts on the part ofpetitioner would have been detrimental to the best interests of the child (see Matter of MarinoS., 100 NY2d at 373).
We further reject the mother's contention that she was entitled to a suspended judgmentbecause she was "bonded" with the child and "made great strides in her drug treatment, as of the[*3]time of trial." At a dispositional hearing, Family Court isvested with several options, including the authority to "suspend judgment in a terminationproceeding where it is in the child['s] best interests to give the parent a second chance to'demonstrate the ability to be a fit parent' " (Matter of Isaiah F., 55 AD3d at 1006,quoting Matter of Angela LL., 287 AD2d 823, 824 [2001]; see Family Ct Act§ 631 [b]). Indeed, no parent is automatically entitled to such "a grace period" (Matterof Angela LL., 287 AD2d at 824), nor is there any presumption for a suspended judgment ina parent's favor (see Matter of AngelicaVV., 53 AD3d 732, 733 [2008]); the sole criterion for a suspended judgment is the bestinterests of the child (see Family Ct Act § 631; Matter of Joshua BB., 27 AD3d 867, 869 [2006]).
Here, as of the time of the dispositional hearing, the mother was only six weeks into aseven-month drug rehabilitation program after her release from jail. She testified to a number ofprevious failed attempts to overcome her addiction to crack cocaine, and admitted failing tocomplete some of the treatment programs and relapsing on cocaine even after completing otherprograms. Additionally, the senior caseworker assigned to work with the mother testified that themother failed to complete the Tompkins County Family Treatment Court and made virtually noefforts toward reunification with the child. Further, there was testimony that the child had notbeen in the mother's custody since he was two months old and that the child's foster parents werewilling to adopt him along with his half-siblings, thereby providing reasonable assurance that thechild would be provided with a stable and permanent home (see Matter of Aidan D., 58AD3d 906, 908 [2009]; cf. Matter ofAudrey I., 57 AD3d 1172, 1175 [2008], lv denied 12 NY3d 704 [2009]).According great deference to Family's Court determination given its opportunity to assess thecredibility of the testimony (see Matterof Laelani B., 59 AD3d 880, 882 [2009]), these facts, coupled with the mother's historyof "persistent unwillingness to meaningfully engage in [reunification] services" (id. at882), fully support the court's refusal to suspend judgment.
Peters, J.P., Rose, Kane and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.