| Matter of Jalil U. (Rachel L.-U.) |
| 2013 NY Slip Op 00754 [103 AD3d 658] |
| February 6, 2013 |
| Appellate Division, Second Department |
| In the Matter of Jalil U., Suffolk County Department ofSocial Services, Respondent; Rachel L.-U., Appellant. (Proceeding No. 1.) In the Matterof Josiah U. Suffolk County Department of Social Services, Respondent; Rachel L.-U.,Appellant. (Proceeding No. 2.) In the Matter of Orianna U. Suffolk County Departmentof Social Services, Respondent; Rachel L.-U., Appellant. (Proceeding No.3.) |
—[*1] Paul J. Margiotta, Acting County Attorney, Central Islip, N.Y. (James G. Bernet ofcounsel), for respondent. J. Gary Waldvogel, Smithtown, N.Y., attorney for the children.
In three related proceedings pursuant to Social Services Law § 384-b toterminate parental rights on the ground of permanent neglect, the mother appeals from anorder of fact-finding and disposition of the Family Court, Suffolk County (Freundlich,J.), dated October 19, 2011, which, upon an order of the same court dated October 18,2011, made after a hearing, finding that the mother violated the terms and conditions of asuspended judgment contained in a prior order of fact-finding and disposition of thesame court, and revoking the suspended judgment, terminated her parental rights, andcommitted the guardianship and custody of the children to the petitioner for the purposeof adoption.
Ordered that on the Court's own motion, the notice of appeal from the order datedOctober 18, 2011, is deemed a notice of appeal from the order of fact-finding anddisposition dated October 19, 2011 (see CPLR 5512 [a]); and it is further,
Ordered that the order of fact-finding and disposition is reversed, on the law, on thefacts, and in the exercise of discretion, without costs or disbursements, the order isvacated, and the matter is remitted to the Family Court, Suffolk County, for a newdispositional hearing and a new [*2]disposition thereafterin accordance herewith.
In December 2008, the child Orianna came into the care of the petitioner, the SuffolkCounty Department of Social Services (hereinafter the DSS), and the DSS filed a neglectpetition. In February 2009, the mother gave birth to twin boys, Jalil and Josiah. Threedays later, the DSS filed neglect petitions with respect to them, and they were removedfrom the mother's care. One month later, findings of neglect on all three petitions weremade based on the mother's admission pursuant to Family Court Act § 1051 (a)and (f). In September 2010, the DSS filed petitions alleging that the mother hadpermanently neglected the three children by, inter alia, failing to plan for their returnfrom foster care. On January 25, 2011, the mother consented to a finding of permanentneglect, and a suspended judgment for a period of one year was entered. In a permanencyhearing order dated January 31, 2011, the mother was directed to comply with the termsof the DSS supervision, including that she "[a]ttend and participate inpsychotherapy/counseling at the direction of the [DSS] and follow all recommendedtreatment" and "[a]ttend and participate in a parenting skills program at the direction ofthe [DSS] and follow all recommended treatment." The permanency plan approved bythe Family Court was modified to reunification with the parent by July 12, 2012. Thevisiting plan was for unsupervised visitation at the discretion of the DSS. As relevant tothis appeal, the requirements that the mother take courses with respect to parenting thetwo younger children, who had been found to have special needs, did not specify whenthe mother was to begin the classes and did not specify the classes she was to take. Themother was already in therapy, which she continued. Notably, upon entering thesuspended judgment, the Family Court complimented the mother for what it termed her"amazing progress." Six months later, in July 2011, the DSS moved for an order holdingthe mother in violation of the terms and conditions of the suspended judgment, revokingthe suspended judgment, terminating her parental rights, and freeing the three subjectchildren for adoption. In October 2011, after holding a hearing on the DSS's motion, thecourt revoked the suspended judgment, terminated the mother's parental rights, and freedthe children for adoption. The mother appeals.
By enacting Family Court Act §§ 631 (b) and 633, the Legislaturevested the Family Court with discretion to give a "second chance" (Matter of MichaelB., 80 NY2d 299, 311 [1992]) to a parent of a "permanently neglected child"(Family Ct Act § 611; Social Services Law § 384-b [7]), before terminatingthe parent's parental rights (see Matter of Michael B., 80 NY2d at 311; Matter of Arianna I. [Roger I.],100 AD3d 1281, 1283-1284 [2012]). A suspended judgment may be entered only ifit is in the best interests of the child (see Family Ct Act § 631; Matter of Eric Z. [Guang Z.],100 AD3d 646, 648 [2012]). It is not, however, intended to be indefinite, but only toafford the parent "a brief grace period designed to prepare the parent to be reunited withthe child" (Matter of Michael B., 80 NY2d at 311). Upon entering an order ofdisposition suspending judgment, the Family Court "must set forth the duration, termsand conditions of the suspended judgment" (Family Ct Act § 633 [c]). Even after asuspended judgment is entered, the court may revoke it if, after a hearing, it finds by apreponderance of the evidence that the parent failed to comply with one or more of itsconditions (see Matter ofChanteau M.R.W. [Pamela R.B.], 101 AD3d 1129 [2012]; Matter of Malik S. [Jana M.],101 AD3d 1776, 1777 [2012]; Matter of Carmen C. [Margarita N.], 95 AD3d 1006, 1008[2012]; Matter of Ricky JosephV., 24 AD3d 683, 684 [2005]). Moreover, a parent must demonstrate thatprogress has been made to overcome the specific problems that led to the removal of thechildren. Mere attempts are not sufficient (see Matter of Darren V., 61 AD3d 986, 987 [2009];Matter of Jennifer VV., 241 AD2d 622, 623 [1997]).
Here, the evidence at the violation hearing did not establish by a preponderance ofthe evidence that the mother failed to comply with the terms and conditions of thesuspended judgment. Among other things, the evidence demonstrated that the motherhad continued in her therapy and was attending a "challenging children" parent trainingprogram. Further, the DSS did not sufficiently specify what was expected of the motherwith respect to attendance at certain physical and speech therapy appointments for thetwo younger children to support the Family Court's finding that her limited attendance atthese appointments violated the terms or conditions of the suspended judgment (cf.Matter of Carmen C. [Margarita N.], 95 AD3d at 1008). The court was properlyconcerned about an incident in the courthouse during which the mother became veryagitated when she believed that her parental rights would be terminated. The recorddemonstrates, [*3]however, that, contrary to thetestimony of the caseworker, the mother had complied with his recommendation that sheaddress the episode in her therapy. Finally, the terms and conditions did not specify bywhen the mother was to have enrolled in or completed the classes pertaining to thespecial needs of the younger children (cf. id.; Matter of Darren V., 61AD3d at 987). Given the DSS's failure to prove that the mother had violated the termsand conditions of the suspended judgment, the court erred in revoking that suspendedjudgment.
Nevertheless, given the passage of more than 15 months since the Family Courtrevoked the now-expired suspended judgment, we remit the matter to the Family Court,Suffolk County, for a new dispositional hearing to ascertain whether, in light of themother's present circumstances and those of the children, a suspended judgment wouldbe in the best interests of the children, and a new disposition thereafter. A suspendedjudgment should not be entered if the best interests of the children would require atermination of parental rights (see Matter of Christopher Lee B., 65 AD3d 549, 550[2009]; Matter of ChristopherC., 58 AD3d 622, 624 [2009]; Matter of Shaquill Dywon M., 50 AD3d 1142, 1145[2008]; Matter of AntonetteAlasha E., 8 AD3d 375, 376 [2004]).
The mother's remaining contention is without merit. Balkin, J.P., Hall, Austin andCohen, JJ., concur.