| Matter of Jesse D. (John J.D.) |
| 2013 NY Slip Op 06001 [109 AD3d 990] |
| September 25, 2013 |
| Appellate Division, Second Department |
| In the Matter of Jesse D. Suffolk County Department ofSocial Services, Appellant; John J.D., III, Respondent. (Proceeding No. 1.) In the Matterof Kyle D. Suffolk County Department of Social Services, Appellant; John J.D. III,Respondent. (Proceeding No. 2.) |
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In related proceedings pursuant to Social Services Law § 384-b and FamilyCourt Act article 6 to terminate parental rights on the ground of permanent neglect, thepetitioner appeals from an order of disposition of the Family Court, Suffolk County(Hoffmann, J.), dated November 29, 2012, which, after a hearing, reinstated andextended for a period of one year a suspended judgment contained in an order offact-finding and disposition of the same court dated May 7, 2010, which suspendedjudgment had been previously vacated by order of the same court dated June 25, 2012.
Ordered that the order of disposition dated November 29, 2012, is reversed, on thelaw, on the facts, and in the exercise of discretion, without costs or disbursements, andthe matter is remitted to the Family Court, Suffolk County, for a new dispositionalhearing, to be convened expeditiously, and thereafter, for a new disposition forthwith.
The two children who are the subjects of these proceedings are now 17 and 14 yearsold, respectively. They have been in foster care since 2006. The respondent, their father,has served several periods of incarceration in the past, and he is incarcerated now. In anorder of fact-finding and disposition dated May 7, 2010, made after a hearing, the FamilyCourt found that the father permanently neglected both children. The Family Courtentered an order suspending judgment, which was to be effective "for one year from thedate of [the father's] release from incarceration." The order suspending judgment did notspecify any terms and conditions.
About two years later, the petitioner, the Suffolk County Department of SocialServices (hereinafter DSS), moved to vacate the order suspending judgment, contendingthat it was illegal, and that the children remained in foster care with uncertain futures.The Family Court granted the motion and vacated the order suspending judgment,recognizing that the order [*2]suspending judgmentviolated Family Court Act § 633 (b), which provides that "[t]he maximum durationof a suspended judgment under this section is one year." Then, after conducting a verybrief dispositional hearing, during which it recognized that the father was stillincarcerated, the Family Court, in the order of disposition appealed from, reinstated andextended the suspended judgment for a period of one year. Again, however, the FamilyCourt did not specify any terms and conditions.
A dispositional order suspending judgment is a dispositional alternative, upon afinding of permanent neglect, that affords "a brief grace period designed to prepare theparent to be reunited with the child" (Matter of Michael B., 80 NY2d 299, 311[1992]). In essence, an order suspending judgment provides the parent with a secondchance, but it may be utilized only when the court determines that a second chance is inthe child's best interests (see Family Ct Act §§ 631, 633; Matterof Michael B., 80 NY2d at 311; Matter of Jalil U. [Rachel L.-U.], 103 AD3d 658, 659[2013]; Matter of ErnestoThomas A., 5 AD3d 380, 381 [2004]). Moreover, the maximum duration of asuspended judgment is one year, unless the court finds at the conclusion of that periodthat "exceptional circumstances" require an extension of that period for one additionalperiod of up to one year (Family Ct Act § 633 [b]; see Matter of MichaelB., 80 NY2d at 311).
Here, as the Family Court realized, its original order suspending judgment wasdefective because it was for an indefinite period—"one year from the date of [thefather's] release from incarceration"—and thus violated Family Court Act §633 (b). Accordingly, the Family Court properly granted DSS's motion to vacate theorder suspending judgment. The Family Court's new order, however, also was defectiveand must be reversed. Family Court Act § 633 (c) provides that an ordersuspending judgment "must set forth the . . . terms and conditions of thesuspended judgment" (see also 22 NYCRR 205.50 [b]) so that the Family Courtmay determine whether the parent has violated it (see Matter of Layante Nytara Ashanti M., 6 AD3d 617, 618[2004]; cf. Matter of Jalil U. [Rachel L.-U.], 103 AD3d at 660). Here, however,the Family Court's original order of fact-finding and disposition, and its subsequent orderof disposition, did not set forth any terms and conditions. Accordingly, the order ofdisposition extending the suspension of judgment must be reversed, and the matterremitted to the Family Court, Suffolk County, for a new dispositional hearing to beconvened expeditiously, and thereafter, a new disposition forthwith. A suspendedjudgment may not be entered if the best interests of the children, for whom uncertaintyhas existed far too long, would require a termination of parental rights (see Matter ofJalil U. [Rachel L.-U.], 103 AD3d at 660-661). Skelos, J.P., Balkin, Austin andSgroi, JJ., concur.