| Matter of Nevaeh SS. (Valerie L.) |
| 2009 NY Slip Op 08908 [68 AD3d 1188] |
| December 3, 2009 |
| Appellate Division, Third Department |
| In the Matter of Nevaeh SS. and Others, Children Alleged to bePermanently Neglected. Chemung County Department of Social Services, Respondent. ValerieL., Appellant. (Proceeding No. 1.) In the Matter of Nevaeh SS. and Another, Children Alleged tobe Permanently Neglected. Chemung County Department of Social Services, Respondent; JamesSS., Appellant. (Proceeding No. 2.) |
—[*1] Abbie Goldbas, Utica, for James SS., appellant. Samuel D. Castellino, Elmira, for respondent. Kelly M. Corbett, Law Guardian, Fayetteville.
Mercure, J.P. Appeals from two orders of the Family Court of Chemung County (Hayden,J.), entered November 6, 2008 and November 21, 2008, which granted petitioner's applications,in two proceedings pursuant to Social Services Law § 384-b, to adjudicate the subjectchildren to be permanently neglected, and terminated respondents' parental rights.
Respondent Valerie L. (hereinafter the mother) is the mother of Misty UU. (born in 1996).The mother and respondent James SS. (hereinafter the father) are also the parents of Nevaeh SS.and Joshua SS. (born in 2005 and 1999, respectively). Respondents were repeatedly found tohave neglected the subject children, as well as their older siblings, and have received servicesover many years. Ultimately, the subject children were removed from the home in May 2006.Since that time, Nevaeh has resided with a foster family, while Misty and Joshua have resided ingroup homes.
In 2008, petitioner commenced these two proceedings and, following fact-finding anddispositional hearings, Family Court determined that the children were permanently neglectedand terminated respondents' parental rights. Respondents appeal, challenging only thedispositional orders. Specifically, the mother argues that Family Court erred in denying herapplication for a suspended judgment, and the father asserts that the court erred in terminatinghis rights with respect to Joshua. We disagree.
Turning first to the mother's claim, we note that "[t]he Legislature created the option of asuspended judgment in a termination proceeding so as to allow 'a brief grace period designed toprepare the parent to be reunited with the child' should such a 'second chance . . .[be] in the child's best interests' " (Matter of Joshua BB., 27 AD3d 867, 869 [2006], quotingMatter of Michael B., 80 NY2d 299, 311 [1992]; see Family Ct Act §631). Nevertheless, upon a finding of permanent neglect, "there is no presumption that anyparticular disposition, including the return of a child to a parent, promotes such interests" (Matter of Angelica VV., 53 AD3d732, 733 [2008]; see Matter of Joshua BB., 27 AD3d at 869).
Here, although the mother had successfully completed one drug rehabilitation program andremained compliant with another, she had been in treatment for only three months at the time ofthe dispositional hearing despite a history of using cocaine and receiving services from petitionerfor the past 12 years. Indeed, there was evidence that the mother continued to relapse while intreatment shortly before the filing of the permanent neglect petition. In addition, the motherstated her intention to return to the father's home despite his untreated cocaine addiction, and shecontinued to deny that the father had a drug problem. Moreover, it is undisputed that Nevaeh isin a preadoptive foster home, and the other children thrived in their respective placements duringthe period that respondents had limited contact. In light of this evidence and according deferenceto Family Court's determination given its opportunity to assess the demeanor and credibility ofthe witnesses, we cannot say that the court abused its discretion in terminating the mother'sparental rights rather than granting a suspended judgment (see Matter of Carlos R., 63 AD3d 1243, 1246 [2009], lvdenied 13 NY3d 704 [2009]; Matter of Laelani B., 59 AD3d 880, 882 [2009]; Matter ofAngelica VV., 53 AD3d at 733; Matter of Joshua BB., 27 AD3d at 869).
Similarly, we reject the father's argument that Family Court erred in terminating his [*2]parental rights with respect to Joshua because he is unlikely to beadopted. First, Joshua's Law Guardian indicates that since the time of the dispositional hearing,Joshua has been matched with a preadoptive family, undercutting the main premise of thefather's argument. In any event, the father has refused to address his substance abuse problems,engage in meaningful treatment to any extent or exercise consistent visitation with Joshua.Accordingly, termination of his parental rights to Joshua was proper here (see Matter ofAngelica VV., 53 AD3d at 733; Matter of Raine QQ., 51 AD3d 1106, 1106-1107 [2008], lvdenied 10 NY3d 717 [2008]; cf. Matter of Amber AA., 301 AD2d 694, 697-698[2003]).
Rose, Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the orders are affirmed,without costs.