| Matter of Christopher Lee B. |
| 2009 NY Slip Op 06136 [65 AD3d 549] |
| August 4, 2009 |
| Appellate Division, Second Department |
| In the Matter of Christopher Lee B., Also Known as ChristopherB., an Infant. Little Flower Children and Family Services, Respondent; Denise S.,Appellant. |
—[*1] Carrieri & Carrieri, P.C., Mineola, N.Y. (Ralph R. Carrieri of counsel), for respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and John A. Newberry of counsel),attorney for the child.
In a proceeding pursuant to Social Services Law § 384-b and Family Court Act article6 to terminate the parental rights of the mother and the father on the ground of permanentneglect, the mother appeals, as limited by her brief, from so much of an order of the FamilyCourt, Queens County (Salinitro, J.), dated June 27, 2008, as, after fact-finding and dispositionalhearings, determined that she permanently neglected the subject child, terminated her parentalrights, and transferred the custody and guardianship of the child to the Commissioner of SocialServices of the City of New York and to Little Flower Children and Family Services for thepurpose of adoption.
Ordered that the order is modified, on the facts and in the exercise of discretion, by deletingthe provisions thereof terminating the mother's parental rights and transferring custody andguardianship of the child to the Commissioner of Social Services of the City of New York and toLittle Flower Children and Family Services for the purpose of adoption; as so modified, theorder is affirmed insofar as appealed from, without costs or disbursements, and the matter isremitted to the Family Court, Queens County, for a new dispositional hearing and a newdisposition thereafter with respect to the appellant, in accordance herewith.[*2]
The Family Court properly concluded that the petitionerestablished, by clear and convincing evidence (see Social Services Law § 384-b[7] [a]), that during the relevant statutory period, the mother failed to enroll in court-orderedpsychotherapy, and thus failed to plan for the future of the child, although physically andfinancially able to do so, notwithstanding the agency's diligent efforts to encourage andstrengthen the parental relationship (see Social Services Law § 384-b [7] [a]; Matter of Justina Rose D., 28 AD3d659, 660 [2006]). Accordingly, the Family Court properly adjudged that the motherpermanently neglected the child (seeMatter of Christopher C., 58 AD3d 622, 623 [2009]).
On the dispositional issue, however, the record indicates that the mother made sufficientprogress toward strengthening her relationship with the child, such that the Family Court'sdisposition terminating her parental rights was unwarranted (see Matter of Christopher C., 58 AD3d 622, 623 [2009]; Matter of Shaquill Dywon M., 50AD3d 1142, 1144 [2008]). Under the circumstances, instead of terminating her parentalrights, the Family Court should have suspended judgment for one year, at which point it wouldhave been in a better position to evaluate the mother's progress and to determine whether thechild's best interests would be endangered by his return to the custody of the appellant (seeSocial Services Law § 384-b [1] [a] [ii]; Family Ct Act § 631 [b]; Matter of Christopher C., 58 AD3d622, 624 [2009]; Matter of ShaquillDywon M., 50 AD3d 1142, 1144 [2008]; Matter of Society for Seamen's Children vJennifer J., 208 AD2d 849, 850 [1994]). Since more than one year has passed since thedispositional hearing was held, the entry of a suspended judgment at this time would beimprudent (see Family Ct Act § 633). Accordingly, we remit the matter to theFamily Court, Queens County, for a new dispositional hearing and a new disposition thereafterwith respect to the mother (see Matterof Shaquill Dywon M., 50 AD3d 1142, 1144 [2008]; Matter of Society for Seamen'sChildren v Jennifer J., 208 AD2d 849, 850 [1994]). Prudenti, P.J., Fisher, Miller and Lott,JJ., concur.