Opinion
524763
07-05-2018
In the MATTER OF CECILIA P., a Permanently Neglected Child. Delaware County Department of Social Services, Respondent; v. Carlenna Q., Appellant.
Teresa C. Mulliken, Harpersfield, for appellant. Jehed F. Diamond, Delhi, attorney for the child.
Teresa C. Mulliken, Harpersfield, for appellant.
Jehed F. Diamond, Delhi, attorney for the child.
Before: Devine, J.P., Clark, Mulvey, Rumsey and Pritzker, JJ.
MEMORANDUM AND ORDER
Devine, J.P.
Appeal from an order of the Family Court of Delaware County (Northrup Jr., J.), entered March 16, 2017, which, among other things, in a proceeding pursuant to Social Services Law § 384–b, granted petitioner's motion to revoke a suspended judgment and terminated respondent's parental rights.
Respondent is the mother of a child (born in 2012) who has been in petitioner's care and custody since 2014. Petitioner subsequently commenced this permanent neglect proceeding against respondent and the child's father seeking to terminate her parental rights. In 2016, respondent and the child's father entered into a stipulation in which she made admissions of permanent neglect and consented to an order of fact-finding and disposition with a suspended judgment set to expire in February 2017. Petitioner moved to revoke the suspended judgment in July 2016 and filed a second motion to that effect in October 2016. Following a fact-finding hearing, Family Court revoked the suspended judgment and terminated respondent's parental rights. Respondent now appeals.
Petitioner also sought to revoke the suspended judgment and terminate the parental rights of the child's father, and he eventually surrendered his parental rights.
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A suspended judgment is intended to provide a parent who has permanently neglected his or her child with a brief period within which to become a fit parent that the child can be returned to in safety (see Matter of Jerhia EE. [Benjamin EE.], 157 A.D.3d 1017, 1018, 68 N.Y.S.3d 219 [2018] ; Matter of Dominique VV. [Kelly VV.], 145 A.D.3d 1124, 1125, 43 N.Y.S.3d 550 [2016], lv denied 29 N.Y.3d 901, 2017 WL 1094840 [2017] ). "A parent's noncompliance with the terms of the suspended judgment during this grace period, if established by a preponderance of the evidence, may end with revocation of the suspended judgment and termination of his or her parental rights" ( Matter of Joseph QQ. [Karissa RR.], 161 A.D.3d 1252, 1252, 75 N.Y.S.3d 690 [2018], lv denied 31 N.Y.3d 913, 2018 WL 3149449 [June 27, 2018] ; see Matter of Jerhia EE. [Benjamin EE.], 157 A.D.3d at 1018, 68 N.Y.S.3d 219 ; Matter of Hazel OO. [Roseanne OO.], 133 A.D.3d 1126, 1127, 21 N.Y.S.3d 404 [2015] ).
Family Court determined, and we agree, that numerous violations of the terms of the suspended judgment were established by a preponderance of the evidence. A full list of those violations is not needed, but a few of the more significant ones are telling. Respondent was discharged for failing to comply with mandated mental health treatment after she absented herself from counseling sessions for several months. She repeatedly failed to participate in drug screening and, when she did participate, twice tested positive for marihuana. She was unapologetic about her marihuana use, indicating that she felt it was therapeutic notwithstanding warnings that it interfered with her psychiatric medications. Respondent missed multiple visits with the child, upset the child by arguing with the child's father when the visits did occur and had difficulty providing healthy food for the child despite attempts to help her with budgeting issues. She also failed to consistently maintain safe, clean housing that was appropriate for the child and, at one point during the period of the suspended judgment, moved into a residence that did not meet quality standards as required to obtain rental assistance. Petitioner, in short, established that respondent had violated the terms of the suspended judgment in varied and significant ways (see Matter of Joseph QQ. [Karissa RR.], 161 A.D.3d at 1253, 75 N.Y.S.3d 690 ; Matter of Jason H. [Lisa K.], 118 A.D.3d 1066, 1067–1068, 987 N.Y.S.2d 476 [2014] ; Matter of Cole WW. [Amanda WW.], 106 A.D.3d 1408, 1409–1410, 966 N.Y.S.2d 567 [2013], lv denied 21 N.Y.3d 865, 2013 WL 4792434 [2013] ).
Nevertheless, violations that could warrant a revocation of the suspended judgment and termination of parental rights do not automatically have that effect (see Matter of Dominique VV. [Kelly VV.], 145 A.D.3d at 1126, 43 N.Y.S.3d 550). It is instead the best interests of the child, which is "relevant at all stages of a permanent neglect proceeding, including at the revocation of a suspended judgment," that determines the appropriate disposition ( Matter of Amber AA., 301 A.D.2d 694, 696, 754 N.Y.S.2d 387 [2003] ; see Family Ct Act § 631 ; 22 NYCRR 205.50 [d][5]; Matter of Krystal B. [Thomas B.], 77 A.D.3d 1110, 1111, 909 N.Y.S.2d 785 [2010] ). Family Court did not make a best interests finding and, absent hearing evidence relating to "the child[ ]'s present circumstances and relationship with [respondent] and the effect upon the[ ] [child] of the termination of [respondent's] parental rights and [the child's] potential adoption," it is unclear how Family Court could have done so ( Matter of Jordan Amir B., 15 A.D.3d 477, 479, 790 N.Y.S.2d 507 [2005] ; see Matter of Krystal B. [Thomas B.], 77 A.D.3d at 1111, 909 N.Y.S.2d 785 ). This lack of relevant information likewise precludes us from exercising our authority "to review the facts [that] is as broad as that of Family Court" (Matter of David R., 39 A.D.3d 1187, 1188, 834 N.Y.S.2d 796 [2007] ; see Matter of Krystal B. [Thomas B.], 77 A.D.3d at 1111, 909 N.Y.S.2d 785 ). Thus, we have little choice but to remit this matter "to Family Court for a full dispositional hearing to discern the best interests of the child[ ]" (Matter of Krystal B. [Thomas B.], 77 A.D.3d at 1111, 909 N.Y.S.2d 785 ).
ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as terminated respondent's parental rights; matter remitted to the Family Court of Delaware County for further proceedings not inconsistent with this Court's decision and, pending said proceedings, respondent is to abide by the terms and conditions of the suspended judgment; and, as so modified, affirmed.
Clark, Mulvey, Rumsey and Pritzker, JJ., concur.