Opinion
03-15-2024
In the MATTER OF PATIENCE E. Erie County Department of Social Services, Petitioner-Respondent; v. Victoria E., Respondent-Appellant. (Appeal No. 1.)
CAITLIN M. CONNELLY, BUFFALO, FOR RESPONDENT-APPELLANT. ANAISS RIJO LELONEK, BUFFALO, FOR PETITIONER-RESPONDENT. DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROXANNA Q. HERREID OF COUNSEL), ATTORNEY FOR THE CHILD.
Appeal from an order of the Family Court, Erie County (Sharon M. LoVallo, J.), entered October 17, 2022, in a proceeding pursuant to Social Services Law § 384-b. The order terminated the parental rights of respondent with respect to the subject child.
CAITLIN M. CONNELLY, BUFFALO, FOR RESPONDENT-APPELLANT.
ANAISS RIJO LELONEK, BUFFALO, FOR PETITIONER-RESPONDENT.
DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROXANNA Q. HERREID OF COUNSEL), ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., CURRAN, MONTOUR, DELCONTE, AND KEANE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In appeal Nos. 1 through 3, respondent mother appeals from orders terminating her parental rights to the subject children pursuant to Social Services Law § 384-b on the ground of permanent neglect. We now affirm in all three appeals.
In all three appeals, we conclude that petitioner met its burden of establishing by clear and convincing evidence that it made the requisite diligent efforts to encourage and strengthen the mother’s relationship with the children (see Social Services Law § 384-b [7] [a]; Matter of Giovanni K, 62 A.D.3d 1242, 1243, 878 N.Y.S.2d 846 [4th Dept. 2009], lv denied 12 N.Y.3d 715, 2009 WL 1851454 [2009]; see generally Matter of Star Leslie W., 63 N.Y.2d 136, 142-143, 481 N.Y.S.2d 26, 470 N.E.2d 824 [1984]). Although Family Court failed to comply with CPLR 4213 (b) when it neglected to make specific findings of fact with respect to the fulfillment of petitioner’s statutory obligation (see Matter of Paulette B., 270 A.D.2d 949, 949, 704 N.Y.S.2d 773 [4th Dept. 2000]; Matter of Kelly G., 244 A.D.2d 709, 709-710, 664 N.Y.S.2d 379 [3d Dept. 1997]), the record is sufficiently developed to enable us to make the necessary findings (see Matter of Howard R., 258 A.D.2d 893, 893, 685 N.Y.S.2d 369 [4th Dept. 1999]).
[1, 2] Contrary to the mother’s further contention in these appeals, the evidence at the hearing establishes that, despite those diligent efforts, the mother failed to plan for the future of the children. "It is well settled that, to plan substantially for a child’s future, ‘the parent must take meaningful steps to correct the conditions that led to the child’s removal’ " within a reasonable period of time (Matter of Jerikkoh W. [Rebecca W.], 134 A.D.3d 1550, 1551, 23 N.Y.S.3d 784 [4th Dept. 2015], lv denied 27 N.Y.3d 903, 2016 WL 1313366 [2016]; see Matter of Nathaniel T., 67 N.Y.2d 838, 840, 501 N.Y.S.2d 647, 492 N.E.2d 775 [1986]; Matter of Faith K [Jamie K.], 203 A.D.3d 1568, 1569, 161 N.Y.S.3d 871 [4th Dept. 2022]; see generally Social Services Law § 384-b [7] [c]). Here, the mother was discharged from mental health counseling, anger management classes, and substance abuse treatment for failure to attend (see Matter of Brady J.C. [Justin P.C.], 154 A.D.3d 1325, 1326, 62 N.Y.S.3d 248 [4th Dept. 2017], lv denied 30 N.Y.3d 909, 2018 WL 414290 [2018]), thereby demonstrating that she failed to "take meaningful steps to correct the conditions that led to the child[ren]’s removal" (Matter of Ayden D. [John D.], 202 A.D.3d 1455, 1456, 158 N.Y.S.3d 912 [4th Dept. 2022] [internal quotation marks omitted]), and "did not successfully address or gain insight into the problems that led to the removal of the [children] and continued to prevent [their] safe return" (Giovanni K., 62 A.D.3d at 1243, 878 N.Y.S.2d 846; see Matter of Soraya S. [Kathryne T.], 158 A.D.3d 1305, 1306, 70 N.Y.S.3d 737 [4th Dept. 2018], lv denied 31 N.Y.3d 908, 2018 WL 2728503 [2018]).
[3, 4] Finally, we reject the mother’s contention that a suspended judgment was warranted and conclude that it was in the children’s best interests to terminate the mother’s parental rights. "A suspended judgment is a brief grace period designed to prepare the parent to be reunited with the child" (Matter of Aiden T. [Melissa S.], 164 A.D.3d 1663, 1663, 84 N.Y.S.3d 658 [4th Dept. 2018], lv denied 32 N.Y.3d 917, 2019 WL 1285104 [2019] [internal quotation marks omitted]; see Family Ct Act § 633; Matter of Michael B., 80 N.Y.2d 299, 310-311, 590 N.Y.S.2d 60, 604 N.E.2d 122 [1992]) and "may be warranted where the parent has made sufficient progress in addressing the issues that led to the child[ren]’s removal from custody" (Matter of Brandon I.J. [Daisy D.], 198 A.D.3d 1310, 1311, 155 N.Y.S.3d 652 [4th Dept. 2021], lv denied 38 N.Y.3d 901, 2022 WL 803787 [2022]).
Here, the mother’s progress in completing her parenting classes, which was only one of several required services, "was made after the [termination of parental rights] petition[s were] filed, and she failed to complete th[at] requirement [or any of her other required services] during [the time between when] the petition was filed and the hearing was concluded" (Matter of Elijah D. [Allison D.], 74 A.D.3d 1846, 1847, 902 N.Y.S.2d 736 [4th Dept. 2010]). Thus, we conclude that any progress "made by [the mother] in the months preceding the dispositional determination was not sufficient to warrant any further prolongation of the [children’s] unsettled familial status" (id. [internal quotation marks omitted]). Our conclusion is further supported by the foster parents’ desire to adopt the children, which adoption would provide them with a "sense of stability" (Matter of Tumario B. [Valerie L.], 83 A.D.3d 1412, 1412, 919 N.Y.S.2d 730 [4th Dept. 2011], lv denied 17 N.Y.3d 705, 2011 WL 2535195 [2011] [internal quotation marks omitted]), and the fact that the children spent a significant portion of their lives in the foster parents’ care and established a bond with them that they lacked with the mother (see Matter of Ty'Keith R., 45 A.D.3d 1397, 1397, 846 N.Y.S.2d 489 [4th Dept. 2007], lv denied 10 N.Y.3d 701, 853 N.Y.S.2d 543, 883 N.E.2d 370 [2008]). We therefore conclude that the court properly determined that a suspended judgment was unwarranted (see Matter of Nathan N. [Christopher R.N.], 203 A.D.3d 1667, 1669, 165 N.Y.S.3d 212 [4th Dept. 2022], lv denied 38 N.Y.3d 909, 2022 WL 2126312, 2022 WL 2127495 [2022]; Brandon I.J., 198 A.D.3d at 1311, 155 N.Y.S.3d 652; Matter of Cheyenne C. [James M.], 185 A.D.3d 1517, 1520-1521, 126 N.Y.S.3d 292 [4th Dept. 2020], lv denied 35 N.Y.3d 917, 2020 WL 6930203, 2020 WL 6790198 [2020]).