| Matter of Abbigail EE. (Elizabeth EE.) |
| 2013 NY Slip Op 03361 [106 AD3d 1205] |
| May 9, 2013 |
| Appellate Division, Third Department |
| In the Matter of Abbigail EE. and Others, PermanentlyNeglected Children. Otsego County Department of Social Services, Respondent;Elizabeth EE., Appellant. |
—[*1] Steven E. Ratner, Otsego County Department of Social Services, Cooperstown, forrespondent. Christopher Hammond, Cooperstown, attorney for the children.
Egan Jr., J. Appeal from an order of the Family Court of Otsego County (Lambert,J.), entered January 5, 2012, which, in a proceeding pursuant to Social Services Law§ 384-b, revoked a suspended judgment and terminated respondent's parentalrights.
Respondent is the mother of five children. In October 2007, respondent's three minordaughters (born in 2002, 2004 and 2007), together with her son (born in 1993), wereremoved from her care and placed with a family member until February 2008, at whichtime all four children entered foster care. The children were adjudicated to be neglectedin or about September 2008 and, in the interim, respondent entered Family TreatmentCourt and petitioner provided services to address, among other things, respondent'songoing substance abuse issues.
In September 2009, petitioner commenced this permanent neglect proceeding withrespect to the three girls and, further, filed a violation petition alleging that respondenthad been discharged from a halfway house for failing to comply with treatment followingan altercation [*2]with another resident and a suicidethreat.[FN1]One month later, Family Court conducted a permanency planning hearing, during thecourse of which it was revealed that respondent had incurred a "loss of clean time" onthree occasions while in Family Treatment Court and that her most recent use ofchemicals occurred in September 2009. Thereafter, in February 2010, respondent enteredan admission encompassing the permanent neglect petition, as well as all pendingviolation and/or modification petitions, and, by order entered April 19, 2010, FamilyCourt adjudicated the children to be permanently neglected and imposed a suspendedjudgment. At a permanency hearing held in August 2010, the suspended judgment wasextended—upon the consent of the parties—for an additional six months.
Combined permanency and dispositional hearings thereafter continued and, inJanuary 2011, petitioner filed a violation petition alleging that respondent had failed toprovide a urine screen and was not taking her prescribed medications.[FN2]Additional hearings were conducted in June 2011 and September 2011, at whichtestimony was adduced regarding, among other things, respondent's two positive tests forTHC and one positive test for opiates, the latter of which formed the basis for a thirdviolation petition. Ultimately, by order entered January 5, 2012, Family Court revokedthe suspended judgment and terminated respondent's parental rights. This appeal byrespondent ensued.
We affirm. Initially, to the extent that respondent and the attorney for the childrenchallenge the sufficiency of respondent's admission or the adequacy of petitioner's effortsto strengthen and encourage the parent-child relationship, the record before us does notreflect that respondent either appealed Family Court's April 2010 order adjudicating herchildren to be permanently neglected (compare Matter of Jonathan NN. [Michelle OO.], 90 AD3d1161, 1162 [2011], lv denied 18 NY3d 808 [2012]; see generally Matter of ArmaniKK. [Deborah KK.], 81 AD3d 1001, 1001-1002 [2011], lv denied 16NY3d 711 [2011] [finding of neglect based upon the evidence and the parent'sadmissions is not a finding entered on consent and, thus, is appealable]) or moved tovacate her admission in this regard (see CPLR 5015). Accordingly, these issuesare not preserved for our review (see Matter of Megan L.G.H. [Theresa G.H.], 102 AD3d869, 869-870 [2013]; Matter of Aidan D., 58 AD3d 906, 908 [2009]). In anyevent, "where, as here, a parent admits to permanent neglect, there is no need for theagency to put forth evidence establishing—nor is it necessary for the court todetermine—that the agency had exercised diligent efforts to strengthen theparental relationship" (Matter of Aidan D., 58 AD3d at 908; see Matter ofMegan L.G.H. [Theresa G.H.], 102 AD3d at 870), and we have no quarrel with thesufficiency of respondent's admission.
As for respondent's assertion that she should have been granted an additionalreprieve, we discern no basis upon which to disturb Family Court's decision to revoke thesuspended judgment and terminate respondent's parental rights. "A suspended judgmentprovides a parent, previously found to have permanently neglected his or her child[ren],with a brief grace period within which to become a fit parent with whom the child[ren]can be safely reunited" (Matterof Elias QQ. [Stephanie QQ.], 72 AD3d 1165, 1166 [2010] [internal quotationmarks and citations omitted]; accord Matter of Alexandria A. [Ann B.], 93 AD3d 1105,1106 [2012], lv denied 19 NY3d 805 [2012]). "During [such] grace period, theparent must comply with the terms of the suspended judgment and, if a preponderance ofthe evidence establishes the parent's noncompliance [therewith], Family Court mayrevoke the judgment and terminate that party's parental rights" (Matter of Clifton ZZ. [LatriceZZ.], 75 AD3d 683, 684 [2010] [citations omitted]; see Matter of Elias QQ.[Stephanie QQ.], 72 AD3d at 1166).
As the record before us establishes that respondent, among other things, failed totake her prescribed medications and tested positive for drugs during the period of timethat the suspended judgment was in effect, we cannot say that Family Court erred inconcluding that respondent had violated the terms thereof. With respect to Family Court'sdecision to terminate respondent's parental rights, we note that the children have been infoster care since February 2008 and, despite numerous opportunities, respondent hasfailed to overcome her substance abuse issues (see Matter of Giovanni K. [Dawn K.], 68 AD3d 1766,1766-1767 [2009], lv denied 14 NY3d 707 [2010]). Under these circumstances,we agree that termination of respondent's parental rights was in the children's bestinterests (see Matter of Alexandria A. [Ann B.], 93 AD3d at 1107; Matter of Chorus SS. [ElatishaSS.], 93 AD3d 1097, 1099-1100 [2012], lv denied 19 NY3d 807[2012]).
Rose, J.P., Lahtinen and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Respondent's son, then15 years old, apparently indicated that he did not wish to be adopted and was notincluded in the permanent neglect petition.
Footnote 2: Respondentsubsequently entered an admission acknowledging her failure to take the prescribedmedications.