Opinion
57 CAF 20-01207
02-10-2023
In the MATTER OF JERIMIAH H. Erie County Department of Social Services, Petitioner-Respondent; v. Kiarra M., Respondent-Appellant.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT. REBECCA HOFFMAN, BUFFALO, FOR PETITIONER-RESPONDENT. ANTHONY CHABALA, BUFFALO, ATTORNEY FOR THE CHILD.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT.
REBECCA HOFFMAN, BUFFALO, FOR PETITIONER-RESPONDENT.
ANTHONY CHABALA, BUFFALO, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Social Services Law § 384-b, petitioner moved to revoke a suspended judgment entered upon, inter alia, the admission of respondent mother that she had permanently neglected the subject child. Respondent mother appeals from an order by which Family Court, inter alia, granted petitioner's motion with respect to the subject child and terminated the mother's parental rights with respect to that child. We affirm.
It is well settled that, "[w]here petitioner establishes by a preponderance of the evidence that there has been noncompliance with any of the terms of the suspended judgment, the court may revoke the suspended judgment and terminate parental rights" ( Matter of Ramel H. [Tenese T.] , 134 A.D.3d 1590, 1592, 23 N.Y.S.3d 782 [4th Dept. 2015] [internal quotation marks omitted]; see Family Ct Act § 633 [f] ; Matter of Ronald O. , 43 A.D.3d 1351, 1352, 842 N.Y.S.2d 801 [4th Dept. 2007] ). "[L]iteral compliance with the terms of the suspended judgment will not suffice to prevent a finding of a violation. A parent must [also] show that progress has been made to overcome the specific problems which led to the removal of the child[ ]" ( Matter of Joseph M., Jr. [Joseph M., Sr.] , 150 A.D.3d 1647, 1648, 52 N.Y.S.3d 602 [4th Dept. 2017], lv denied 29 N.Y.3d 917, 2017 WL 3878204 [2017] [internal quotation marks omitted]; see Matter of Maykayla FF. [Eugene FF.] , 141 A.D.3d 898, 899, 34 N.Y.S.3d 777 [3d Dept. 2016] ). Further, "a hearing on a [motion] alleging that the terms of a suspended judgment have been violated is part of the dispositional phase of the permanent neglect proceeding, and ... the disposition shall be based on the best interests of the child" ( Matter of Jenna D. [Paula D.] , 165 A.D.3d 1617, 1619, 85 N.Y.S.3d 318 [4th Dept. 2018], lv denied 32 N.Y.3d 912, 2019 WL 150570 [2019] [internal quotation marks omitted]). Contrary to the mother's contention, the record establishes that she failed to verify her income, failed to sign necessary consent forms for the child, and missed several scheduled visits. Again, the failure to comply with "any of the terms of the suspended judgment" permits the court to revoke the suspended judgment ( Joseph M., Jr. , 150 A.D.3d at 1648, 52 N.Y.S.3d 602 [emphasis added]).
Finally, a preponderance of the evidence supports the court's determination that it was in the child's best interests to terminate the mother's parental rights (see Jenna D. , 165 A.D.3d at 1619, 85 N.Y.S.3d 318 ; Matter of Mikel B. [Carlos B.] , 115 A.D.3d 1348, 1349, 984 N.Y.S.2d 253 [4th Dept. 2014] ). "Although [the mother's] breach of the express conditions of the suspended judgment does not compel the termination of [her] parental rights, [it] is strong evidence that termination is, in fact, in the best interests of the child[ ]" ( Jenna D. , 165 A.D.3d at 1619, 85 N.Y.S.3d 318 [internal quotation marks omitted]; see Matter of Michael HH. [Michael II.] , 124 A.D.3d 944, 945-946, 1 N.Y.S.3d 442 [3d Dept. 2015] ). Here, "any progress that [the mother] made was not sufficient to warrant any further prolongation of the child[’s] unsettled familial status" ( Matter of Brendan S. , 39 A.D.3d 1189, 1190, 834 N.Y.S.2d 602 [4th Dept. 2007] [internal quotation marks omitted]).