| Matter of Michael HH. (Michael II.) |
| 2015 NY Slip Op 00258 [124 AD3d 944] |
| January 8, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Michael HH., a Child Alleged to bePermanently Neglected. Rensselaer County Department of Social Services, Respondent; Michael II.,Appellant. |
Eugene P. Grimmick, Troy, for appellant.
Stephen J. Dushko, Rensselaer County Department of Social Services, Troy, forrespondent.
Larry P. Kivitz, East Greenbush, attorney for the child.
Devine, J. Appeal from an order of the Family Court of Rensselaer County(Cholakis, J.), entered June 27, 2013, which granted petitioner's application, in aproceeding pursuant to Social Services Law § 384-b, to revoke a suspendedjudgment, and terminated respondent's parental rights.
Respondent is the father of Michael HH. (born in 2000). In 2008, respondentvoluntarily transferred custody of the child to petitioner and, shortly thereafter, consentedto the entry of a one-year order of supervision that required respondent to comply with alist of terms and conditions. Although respondent had custody of the child for a fewmonths in 2009, the child was returned to foster care when respondent was found to haveviolated the prior order of supervision. Petitioner filed a permanent neglect petitionagainst respondent in 2010 and respondent consented to a one-year suspended judgment.When respondent failed to satisfy certain conditions of the judgment, petitionercommenced the instant proceeding to revoke the suspended judgment and terminaterespondent's parental rights. Respondent moved to dismiss the petition, which motionwas supported by the attorney for the child. Family Court denied the motion and, aftercompleting a hearing on petitioner's application and an in camera examination [*2]of the child, Family Court granted the petition. Respondentappeals.
It is well settled that a suspended judgment gives a parent who is found to haveneglected his or her child "a brief grace period within which to become a fit parent withwhom the child can be safely reunited" (Matter of Alexandria A. [Ann B.], 93 AD3d 1105, 1106[2012], lv denied 19 NY3d 805 [2012] [internal quotation marks and citationomitted]; see Matter of EliasQQ. [Stephanie QQ.], 72 AD3d 1165, 1166 [2010]). Where, as here, it isestablished by a preponderance of the evidence that the parent has failed to comply withthe terms and conditions of a suspended judgment, such judgment may be revoked andparental rights may be terminated (see Matter of Gracie YY., 34 AD3d 1053, 1054 [2006];Matter of Amber AA., 301 AD2d 694, 696 [2003]). Furthermore, "petitioner isnot obligated to wait until the end of the period of suspended judgment to seek to revokethe suspended judgment" where the parent has repeatedly violated the judgment's termsand conditions (Matter of Alexandria A. [Ann B.], 93 AD3d at 1107; see e.g. Matter of Ronnie P.[Danielle Q.], 85 AD3d 1246, 1246 [2011]).
The suspended judgment required respondent to, among other things, retrieve thechild for scheduled visitation sessions and return him to his foster home in a timelymanner, attend meetings with the child's counselor and undergo family counseling withhis girlfriend. The record shows that, despite the mandate that respondent be punctual forhis visitation with the child, he failed to do so on more than one occasion. Moreover,hearing testimony revealed that respondent's attendance at counseling meetings was, atbest, erratic, despite continual efforts by the child's counselor to reschedule appointmentsand make accommodations for respondent. Respondent also failed to schedule a familycounseling session even after receiving numerous reminders to do so.
Respondent and the attorney for the child, neither of whom appeared at oralargument, now argue that respondent's failure to undergo counseling with hisfiancée or attend certain scheduled meetings with the child's counselor were"inconsequential violations of the suspended judgment" that should not have resulted inthe termination of respondent's parental rights. However, the fact that respondent maynot have understood the reasoning for or agreed with the terms and conditions in thesuspended judgment did not render such provisions anything less than compulsory, andalthough respondent was afforded ample opportunity to satisfy the terms and conditionsof the suspended judgment, his failure to comply with the provisions of such judgmentexposed him to the risk of losing his parental rights (see Matter of Cole WW. [Amanda WW.], 106 AD3d 1408,1409 [2013], lv denied 21 NY3d 865 [2013]; Matter of Clifton ZZ. [Latrice ZZ.], 75 AD3d 683, 684[2010]; Matter of Travis A. [Daisy B.], 4 AD3d 632, 633 [2004], lvdenied 2 NY3d 706 [2004]). The record, in fact, provides no indication thatrespondent made any meaningful effort to address the issues that led to the child'splacement in foster care in the first instance and "take appropriate steps to have [thechild] returned to his custody" (Matter of Madelyn D. [Direll D.], 112 AD3d 1165, 1166[2013]; see Matter of DarrenV., 61 AD3d 986, 986-987 [2009], lv denied 12 NY3d 715 [2009]; Matter of Frederick MM., 23AD3d 951, 953 [2005]).
Although respondent's breach of the express conditions of the suspended judgment" 'does not compel the termination of [his] parental rights, [it] is strong evidencethat termination is, in fact, in the best interests of the child[ ]' " (Matter ofRonnie P. [Danielle Q.], 85 AD3d at 1247, quoting Matter of Clifton ZZ. [LatriceZZ.], 75 AD3d at 685). The child's foster mother averred that he struggledemotionally when respondent's visitation became inconsistent and that, despite beingasked to become involved in the child's athletic activities, respondent has failed to attendany games or practices. The child's placement in his foster home has given him a safe,stable and caring environment in which he has bonded with his foster parents andsiblings. [*3]Family Court, although obviouslydisheartened in resolving the instant petition contrary to the child's express wishes,ultimately determined that his best interests would be served by terminating respondent'sparental rights and clearing the way for him to be permanently placed with the fosterfamily. Inasmuch as Family Court's determination has a sound and substantial basis in therecord, it shall remain undisturbed (see Matter of Jayden T. [Amy T.], 118 AD3d 1075, 1077[2014]; Matter of Kellcie NN.[Sarah NN.], 85 AD3d 1251, 1252-1253 [2011]; Matter of Aidan D., 58AD3d 906, 909 [2009]).
McCarthy, J.P., Egan Jr. and Clark, JJ., concur. Ordered that the order is affirmed,without costs.