| Matter of Chanel C. (Vanessa N.) |
| 2014 NY Slip Op 04226 [118 AD3d 826] |
| June 11, 2014 |
| Appellate Division, Second Department |
[*1] (June 11, 2014)
| In the Matter of Chanel C. Heart Share Human Servicesof New York, Roman Catholic Diocese of Brooklyn, Appellant-Respondent; Vanessa N.,Respondent-Appellant. (Proceeding No. 1.) In the Matter of Layla C.C. Heart ShareHuman Services of New York, Roman Catholic Diocese of Brooklyn,Appellant-Respondent; Vanessa N., Respondent-Appellant. (Proceeding No.2.) |
Wingate, Kearney & Cullen, LLP, Brooklyn, N.Y. (Allyson L. Stein ofcounsel), for appellant-respondent.
Brooklyn Defender Services, Family Defense Practice, Brooklyn, N.Y.(Lauren Shapiro and Crowell & Moring LLP [Bruce D. DeRenzi and Sean E.Jackson], of counsel), for respondent-appellant.
Scott A. Rosenberg, New York, N.Y. (Tamara A. Steckler and Mark Dellaquila ofcounsel), attorney for the children.
In two related proceedings pursuant to Social Services Law § 384-b toterminate parental rights on the ground of permanent neglect, the petitioner appeals (1)from an order of the Family Court, Kings County (Beckoff, J.), dated June 12, 2013,which denied its motion for leave to renew those branches of the petitions which soughtto terminate the mother's parental rights, which branches had been, in effect, denied intwo prior orders of the same court, both dated May 21, 2013, and (2), as limited by itsbrief, from so much of two orders of fact-finding and disposition of the same court, bothdated June 24, 2013 (one as to each child), as, after fact-finding and dispositionalhearings, and upon a finding that the mother had permanently neglected the subjectchildren, failed to terminate the mother's parental rights and instead suspended judgmentagainst her provided that she complied with enumerated terms and conditions, and themother cross-appeals from so much of the orders of fact-finding and disposition as foundthat she had permanently neglected the subject children.
[*2] Ordered that the appeal from the order dated June 12,2013, is dismissed, without costs or disbursements; and it is further,
Ordered that the orders of fact-finding and disposition are reversed insofar asappealed from, on the facts and in the exercise of discretion, without costs ordisbursements, those branches of the petitions which sought to terminate the mother'sparental rights are granted, the orders dated May 21, 2013, and the order dated June 12,2013, are vacated, and custody and guardianship of the subject children is transferred toHeart Share Human Services of New York, Roman Catholic Diocese of Brooklyn, forthe purpose of adoption; and it is further;
Ordered that the orders of fact-finding and disposition are affirmed insofar ascross-appealed from, without costs or disbursements.
The appeal from the order dated June 12, 2013, denying leave to renew, must bedismissed as no appeal lies as of right from a nondispositional order of the Family Courtin a permanent neglect proceeding pursuant to Social Services Law § 384-b(see Family Ct Act § 1112 [a]), and leave to appeal has not beengranted and in any event the appeal is rendered academic in light of our determination onthe appeals from the orders of fact-finding and disposition.
Contrary to the mother's contention, the Family Court properly found that HeartShare Human Services of New York, Roman Catholic Diocese of Brooklyn (hereinafterthe agency), exercised diligent efforts to strengthen her relationship with the subjectchildren by, inter alia, developing a service plan, providing her with referrals, attemptingto maintain contact with her by telephone and letter both before and after her move toFlorida, and providing prepaid transportation from Florida to New York to visit thechildren (see Matter ofTashameeka Valerie P. [Priscilla P.], 102 AD3d 614, 615 [2013]; Matter of Carmine A.B. [NicoleB.], 101 AD3d 711, 712-713 [2012]; Matter of Jasper QQ., 64 AD3d 1017, 1020 [2009];Matter of Paulette B., 270 AD2d 949 [2000]; Matter of Jennifer VV., 99AD2d 882, 883 [1984]). Despite these efforts, the mother failed to maintain regularcontact with the children, either by telephone or by in-person visits. Likewise, althoughshe completed anger management and parenting skills classes, the mother failed overseveral years to address the primary obstacle to her reunification with the children bysubmitting to random drug testing and participating in a drug treatment program (seeMatter of Jamie M., 63 NY2d 388, 393 [1984]; Matter of Darryl A.H. [Olga Z.], 109 AD3d 824 [2013]; Matter of Tarmara F.J. [JaineenJ.], 108 AD3d 543, 543-544 [2013]; Matter of Peter C., Jr. [Peter C.], 88 AD3d 702, 703[2011]; Matter of FatimaG., 64 AD3d 653, 654 [2009]; Matter of Noelia T., 61 AD3d 983, 984 [2009]; Matter of Demetrie T.J.C., 57AD3d 392, 393 [2008]; Matter of Justina Rose D., 28 AD3d 659, 660 [2006]).Accordingly, the mother failed to "take steps to correct the conditions that led to theremoval of the children from the home" and failed to "genuinely take[ ] steps towardrecognizing [her] problems and changing [her] attitudes and patterns of behavior" (Matter of Jennifer R., 29 AD3d1005, 1006 [2006]; seeMatter of Zechariah J. [Valrick J.], 84 AD3d 1087, 1087-1088 [2011]; Matter of Jonathan B. [LindaS.], 84 AD3d 1078, 1079 [2011]). Under these circumstances, the Family Courtcorrectly found that, despite diligent efforts by the agency, the mother failed toadequately plan for the children's future and, therefore, permanently neglected thechildren (see Social Services Law § 384-b [4], [7] [a]; Matter ofMichael B., 80 NY2d 299, 309 [1992]; Matter of Star Leslie W., 63 NY2d136, 142 [1984]; Matter of Sheila G., 61 NY2d 368, 373 [1984]; Matter ofPeter C., Jr. [Peter C.], 88 AD3d at 703; Matter of Jennifer R., 29 AD3d at1005-1006; Matter of Justina Rose D., 28 AD3d at 660).
After a dispositional hearing on a petition to terminate parental rights, a court maydismiss the petition, terminate parental rights and commit guardianship to the agency, orsuspend judgment for a period of up to one year (see Family Ct Act§§ 631, 633 [b]). "A dispositional order suspending judgment is adispositional alternative, upon a finding of permanent neglect, that affords 'a brief graceperiod designed to prepare the parent to be reunited with the child' " (Matter of Jesse D. [John J.D.],109 AD3d 990, 991 [2013], quoting Matter of Michael B., 80 NY2d at 311).Although this disposition provides a parent with a "second chance," it is appropriate onlywhere it is also in the best interests of the children (see Jesse D. [John J.D.], 109AD3d at 991; Matter of Jalil U.[Rachel L.-U.], 103 AD3d 658, 659 [2013]; see also Matter of Mahaadai D.H. [Rhonda L.H.], 110 AD3d878, 879 [2013]; Matter ofLaelani B., 59 AD3d 880, 882 [2009]). A suspended judgment is notappropriate where a parent has failed to gain insight into the problems which led to thechildren's removal in the first instance (see Matter of Mahaadai D.H. [RhondaL.H.], 110 AD3d at 879; Matter of Anthony R. [Juliann A.], 90 AD3d 1055, 1057[2011]). Moreover, to warrant a suspended judgment, "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" (Matter of Jalil U. [Rachel L.-U.], 103AD3d at 660; see Matter ofJewels E.R. [Julien R.], 104 AD3d 773, 774 [2013]).
Here, the Family Court erred in suspending judgment in light of the mother'sdecision to relocate to Florida after the children were removed from her care and custody,which impeded regular and meaningful visitation, her failure to gain insight into herproblems, and her failure to complete services over a period of years (compareMahaadai D.H. [Rhonda L.H.], 110 AD3d at 880, Matter of Victoria C. [CassandraC.], 106 AD3d 1084, 1085 [2013], Matter of Jewels E.R. [Julien R.],104 AD3d at 773-774, Matter ofMegan L.G.H. [Theresa G.H.], 102 AD3d 869, 870 [2013], Matter ofAnthony R. [Juliann A.], 90 AD3d at 1057, and Matter of Lameek L., 226AD2d 464, 465 [1996], withMatter of Christopher C., 58 AD3d 622, 623-624 [2009], and Matter ofSociety for Seamen's Children v Jennifer J., 208 AD2d 849 [1994]). The court alsofailed to adequately consider whether a suspended judgment and potential reunificationwith the mother would be in the best interests of the children, given the mother'sunwillingness to move back to New York to be with the children. The court also failed toconsider how the children would be affected by being removed from their foster parent inNew York (the paternal aunt, with whom they have lived for approximately four years,substantially all of their lives) and being relocated to Florida, where they have never evenvisited (see Matter of Jewels E.R. [Julien R.], 104 AD3d at 773; Matter of Kevin L. [Jose L.L.],102 AD3d 695, 696 [2013]). In light of the mother's failure to acknowledge andaddress the problems which led to the children's removal in the first instance, and giventhe adverse effect that removal from the foster parent is likely to have on the children, thecourt should have terminated the mother's parental rights and freed the children foradoption (see Matter of Mahaadai D.H. [Rhonda L.H.], 110 AD3d at 879;Matter of Jewels E.R. [Julien R.], 104 AD3d at 774; Matter of Jalil U.[Rachel L.-U.], 103 AD3d at 660; Matter of Anthony R. [Juliann A.], 90AD3d at 1057). In this regard, and contrary to the view of our dissenting colleague, themother's recent compliance with the minimal requirements of the suspended judgment isnot sufficient to warrant an additional inquiry as to whether reunification is a viablegoal.
In light of the foregoing, we need not consider the issues raised on the agency'sappeal from the order dated June 12, 2013. Mastro, J.P., Rivera and Miller, JJ.,concur.
Balkin, J., concurs in part and dissents in part, and votes to reverse the orders offact-finding and disposition insofar as appealed from, on the facts and in the exercise ofdiscretion, and remit the matter to the Family Court, Kings County, for a newdispositional hearing, with the following memorandum: I agree with my colleagues that,on the record before us, the Family Court improvidently exercised its discretion insuspending judgment against the mother upon its finding of permanent neglect.Nonetheless, under the very unusual circumstances of this case, I would, upon affirmingthe finding of permanent neglect, remit the matter for a new dispositional hearing.
Once the Family Court determined that the children were permanently neglected, thesole issue for disposition was the children's best interests (see Family Ct Act§ 631; Matter ofHailey ZZ. [Ricky ZZ.], 19 NY3d 422, 429-430 [2012]; Matter of StarLeslie W., 63 NY2d 136, 147-148 [1984]; Matter of Christiana M. N.-M. [Alfonso N.], 101 AD3d884, 884 [2012]). Even though I agree with my colleagues that a suspendedjudgment was not the appropriate disposition when it was entered, we have receivedinformation that, during the pendancy of the appeal, circumstances, and the children'sbest interests, may have changed. By virtue of the issuance of the suspended judgment,the agency has been constrained to change the permanency goal to reunification.Apparently, during this period, the mother fulfilled the terms of the suspended judgment,which required weekly random drug screening and negative results for all illicitsubstances, bimonthly visitation with the children via airplane [*3]tickets provided by the agency for the mother's travelbetween New York and Florida, maintenance of regular phone contact with the children,and maintenance of stable housing and source of income. The period of the suspendedjudgment expired on May 21, 2014.
A year is a significant period of time, especially in the lives of very young children,and what was appropriate a year ago may not be appropriate now (see Matter ofMichael B., 80 NY2d 299, 317-318 [1992]; cf. Matter of Jalil U. [Rachel L.-U.], 103 AD3d 658,660-661 [2013]). In light of the very unusual circumstances of this case and the absenceof record information concerning whether termination of this mother's parental rights stillis in the best interests of these children, I would remit for a new dispositional hearing(see Matter of Michael B., 80 NY2d at 317-318; Matter of Leval B. v Kiona E.,115 AD3d 665, 667 [2014]; Matter of Jalil U. [Rachel L.-U.], 103 AD3d at660-661).
Accordingly, I respectfully dissent in part and would not terminate the mother'sparental rights without a new dispositional hearing.