| Matter of Shad S. (Amy C.Y.) |
| 2009 NY Slip Op 08283 [67 AD3d 1359] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Shad S., Jr., an Infant. Erie County Department ofSocial Services, Respondent; Amy C.Y., Appellant. |
—[*1] Joseph T. Jarzembek, Buffalo, for petitioner-respondent. David C. Schopp, Law Guardian, the Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D.Halvorsen of counsel) for Shad S., Jr.
Appeal from an order of the Family Court, Erie County (Margaret O. Szczur, J.), enteredDecember 28, 2007 in a proceeding pursuant to Social Services Law § 384-b. The orderrevoked an extended suspended judgment and terminated respondent's parental rights.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs and the matter is remitted to Family Court, Erie County, for a new dispositionalhearing in accordance with the following memorandum: Respondent mother appeals from anorder that, inter alia, revoked an extended suspended judgment entered upon a finding ofpermanent neglect and terminated her parental rights with respect to the child. We note at theoutset that the mother's contention that Family Court failed to consider the tolling provisions ofFamily Court Act § 633 (e) when it set the expiration date of the extended suspendedjudgment is raised for the first time on appeal and thus is not properly before us (seeCPLR 5501 [a] [3]; see also Matter ofJames E., 17 AD3d 871, 873 [2005]). In any event, we conclude that the expiration dateof the extended suspended judgment is of no moment inasmuch as the mother is alleged to haveviolated the terms and conditions of that suspended judgment. If the agency establishes "by apreponderance of the evidence that there has been noncompliance with any of the terms of thesuspended judgment, the court may revoke the suspended judgment and terminate parentalrights" (Matter of Ronald O., 43AD3d 1351, 1352 [2007]; see Family Ct Act § 633 [f]; Matter of Terry L.G., 6 AD3d1144 [2004]). Here, petitioner met that burden with respect to the extended suspendedjudgment (see Ronald O., 43 AD3d at 1352; Terry L.G., 6 AD3d 1144 [2004]).Petitioner presented evidence at the hearing establishing that the mother failed to obtain suitablehousing, failed to attend two out of three appointments with the child's psychologist and failed toprovide required documentation concerning her employment and mental health treatment in atimely manner. In addition, petitioner established that the mother failed to demonstrate theparenting skills necessary to understand the child's unique educational situation.
Nevertheless, we further conclude under the circumstances of this case that, "based on [*2]new facts and allegations [that] this Court may properly consider. . . , including that the child is [no longer in a preadoptive home] and will notconsent to adoption . . . , it is not clear that termination of the mother's parentalrights is in the child's best interests" (Matter of Danielle Joy K., 60 AD3d 948, 949 [2009], lvdismissed 12 NY3d 865 [2009]; seeMatter of Kayshawn Raheim E., 56 AD3d 471, 473 [2008], lv denied 12 NY3d702 [2009]). We therefore reverse the order and remit the matter to Family Court for a newdispositional hearing to determine the child's best interests. Present—Scudder, P.J.,Hurlbutt, Green, Pine and Gorski, JJ.