| Matter of Krystal B. (Thomas B.) |
| 2010 NY Slip Op 07444 [77 AD3d 1110] |
| October 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of Krystal B. and Others, Permanently NeglectedChildren. Schenectady County Department of Social Services, Respondent; Thomas B.,Appellant. (Proceeding No. 1.) In the Matter of Krystal B. and Others, Permanently NeglectedChildren. Schenectady County Department Of Social Services, Respondent; Heidi Z., Appellant.(Proceeding No. 2.) |
—[*1] Bruce Evans Knoll, Albany, for Heidi Z., appellant. Christopher H. Gardner, County Attorney, Schenectady (Ursula E. Hall of counsel), forSchenectady County Department of Social Services, respondent. Karen R. Crandall, Schenectady, attorney for the children.
Malone Jr., J. Appeals from two orders of the Family Court of Schenectady County (Assini,J.), entered October 19, 2009, which, among other things, in two proceedings pursuant to SocialServices Law § 384-b, granted petitioner's motions to revoke suspended judgments andterminate respondents' parental rights.
In November 2007, Family Court adjudicated the three children of respondent Thomas B.and respondent Heidi Z. to be permanently neglected based upon the admissions of both parties.Respondents consented to the entry of suspended judgments, which required respondents to,among other things, cooperate with substance abuse treatments, submit to random drug screeningand attend every scheduled visitation session with the children or provide a documented excusefor missing such. In March 2008, petitioner moved to revoke the suspended judgments, allegingthat respondents were not complying with the terms and conditions of those judgments. After ahearing, at which both respondents admitted to their noncompliance, Family Court revoked thesuspended judgments and terminated their parental rights. Respondents appeal.
It is not disputed that both respondents failed to comply with certain terms and conditions oftheir respective suspended judgments by failing to submit to random drug screening, missingvisits with the children without providing documentation and not attending counseling. However,a parent's violation of the terms of a suspended judgment does not automatically result in thetermination of his or her parental rights (see 22 NYCRR 205.50 [d] [4]). Indeed, "[t]hebest interest of the child . . . [is] relevant at all stages of a permanent neglectproceeding, including at the revocation of a suspended judgment" (Matter of Amber AA.,301 AD2d 694, 696 [2003]), and a disposition shall be determined solely on that basis(see Family Ct Act § 631). On this record, it is not readily apparent that FamilyCourt adequately considered the best interests of the children before terminating respondents'parental rights. At the revocation hearing, Family Court did not allow testimony from the fostercare agencies' representatives regarding the children's status or progress in their placements andquestioned the relevance of such testimony.
Further, on the record as it exists, it is not clear that the children's best interests are served byterminating respondents' parental rights. Notably, both respondents expressed a desire to regaincustody of the children and provided testimony that mitigated their noncompliance with the termsof the suspended judgments, including that they refused to submit to the random drug screeningon the advice of counsel representing them in a related personal injury action againstpetitioner.[FN*]The testimony established that respondents called their caseworker with reasons for missingvisits but that the caseworker did not request written documentation, and that respondents hadtrouble securing appropriate counseling programs and did not receive any assistance frompetitioner. Petitioner's caseworker and the representatives from each foster care [*2]agency verified that petitioner stopped providing services torespondents once the permanent neglect proceedings were commenced.
Under the particular circumstances of this case, and absent adequate evidence of thechildren's relationships with their parents, their progress in their placements, the effect that thetermination of respondents' parental rights will have on them and their prospects for adoption, thematters must be remitted to Family Court for a full dispositional hearing to discern the bestinterests of the children (see Matter ofJordan Amir B., 15 AD3d 477, 479 [2005]; Matter of Amber AA., 301 AD2d at697-698).
Peters, J.P., Spain, Stein and Egan Jr., JJ., concur. Ordered that the orders are modified, onthe law and the facts, without costs, by reversing so much thereof as terminated respondents'parental rights; matters remitted to the Family Court of Schenectady County for furtherproceedings not inconsistent with this Court's decision and, pending said proceedings,respondents are to abide by the terms and conditions of the suspended judgment; and, as somodified, affirmed.
Footnote *: Apparently, the action wascommenced to recover for serious injuries sustained by their youngest child while in petitioner'scustody.