| Matter of Gianna W. (Jessica S.) |
| 2012 NY Slip Op 04838 [96 AD3d 545] |
| June 14, 2012 |
| Appellate Division, First Department |
| In the Matter of Gianna W., an Infant. Jessica S., Appellant; SaintDominic's Home, Respondent, et al., Petitioner. |
—[*1] Warren & Warren, P.C., Brooklyn (Ira L. Eras of counsel), for Saint Dominic's Home,respondent. Wendy J. Claffee, Bronx, Attorney for the Child.
Order, Family Court, Bronx County (Karen I. Lupuloff, J.), entered on or about May 10,2011, which, to the extent appealed from as limited by the briefs, upon a finding that respondentmother had violated the terms of a suspended judgment, terminated her parental rights to thesubject child, and committed custody and guardianship of the child to petitioner agency and theCommissioner of the Administration for Children's Services for the purpose of adoption,unanimously reversed, on the law and the facts, without costs, the disposition as to the childvacated, and the matter remanded for an immediate hearing as to the child's best interests.
The mother does not dispute the court's finding that she violated the terms of the suspendedjudgment by not obtaining suitable housing. However, she does challenge the determination toterminate her parental rights as a result of that violation. In particular, the mother argues that itwas improper to terminate her parental rights on the sole ground that she had failed to obtainsuitable housing, and without hearing current evidence as to the child's best interests.
Contrary to the mother's contention, a court may terminate parental rights after a finding ofnoncompliance with a suspended judgment (Matter of Kendra C.R. [Charles R.], 68 AD3d 467, 467-468 [2009],lv dismissed in part and denied in part 14 NY3d 870 [2010]), even where, as here, thesole ground for noncompliance is the failure to secure suitable housing. Indeed, the failure toobtain suitable housing is a "material violation of the terms of the suspended judgment, andconstitute[s] independent grounds for revocation" (id. at 467).[*2]
However, the matter should be remanded for adispositional hearing with respect to the best interests of the child. The Family Court limited allevidence at the violation hearing to facts occurring up until the filing of the violation petition.Although this was proper with respect to the fact-finding portion of the hearing, evidence ofmatters that occurred after the filing of the petition is "relevant to the issue of the child's bestinterests, and [should have been] considered at the dispositional [phase of the] hearing" (Matter of Christian Lee R., 38 AD3d235, 235 [2007], lv denied 8 NY3d 813 [2007]), especially where, as here, there isevidence that the mother complied with all other agency requirements. She visited regularly withthe child every weekend, remained sober and maintained steady employment since her releasefrom prison and obtained suitable housing by the time of the hearing. Concur—Andrias,J.P., Friedman, Sweeny, Manzanet-Daniels and Román, JJ.