Opinion
1504 CAF 16–01181
12-22-2017
In the MATTER OF DAH'MARII G. Erie County Department of Social Services, Petitioner–respondent; Cassandra G., Respondent–Appellant.
EVELYNE A. O'SULLIVAN, EAST AMHERST, FOR RESPONDENT–APPELLANT. JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER–RESPONDENT. NANCY J. BIZUB, ATTORNEY FOR THE CHILD, BUFFALO.
EVELYNE A. O'SULLIVAN, EAST AMHERST, FOR RESPONDENT–APPELLANT.
JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER–RESPONDENT.
NANCY J. BIZUB, ATTORNEY FOR THE CHILD, BUFFALO.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:Respondent mother appeals from an order that revoked a suspended judgment entered upon her admission of permanent neglect and terminated her parental rights with respect to the subject child. We affirm. Preliminarily, we note that the prior order of Family Court finding permanent neglect and suspending judgment was entered on the consent of the parties, and thus it is beyond appellate review (see Matter of Martha S. [Linda M.S.], 126 A.D.3d 1496, 1497, 6 N.Y.S.3d 373 [4th Dept. 2015], lv dismissed in part and denied in part 26 N.Y.3d 941, 17 N.Y.S.3d 58, 38 N.E.3d 800 [2015] ; Matter of Xavier O.V. [Sabino V.], 117 A.D.3d 1567, 1567, 985 N.Y.S.2d 810 [4th Dept. 2014], lv denied 24 NY3d 903, 995 N.Y.S.2d 711, 20 N.E.3d 657 [2014] ). Here, the mother never moved to vacate the finding of neglect or to withdraw her consent to the order, and thus her contention that her consent was not knowing, intelligent, and voluntary is not properly before us (see Martha S., 126 A.D.3d at 1497, 6 N.Y.S.3d 373 ; Xavier O.V., 117 A.D.3d at 1567, 985 N.Y.S.2d 810 ). In any event, that contention lacks merit.
Contrary to the mother's further contention, the court properly suspended judgment and terminated her parental rights. It is well established that, "if Family Court determines by a preponderance of the evidence that there has been noncompliance with any of the terms of [a] suspended judgment, the court may revoke the suspended judgment and terminate parental rights" ( Matter of Ireisha P. [Shonita M.], 154 A.D.3d 1340, 1340, 60 N.Y.S.3d 919 [4th Dept. 2017] [internal quotation marks omitted]; see Matter of Ramel H. [Tenese T.], 134 A.D.3d 1590, 1592, 23 N.Y.S.3d 782 [4th Dept. 2015] ). Here, the testimony of the case planner assigned to the mother established that the mother was repeatedly discharged from substance abuse treatment and repeatedly failed drug tests (see Matter of Carmen C. [Margarita N.], 95 A.D.3d 1006, 1008, 944 N.Y.S.2d 214 [2d Dept. 2012] ). Thus, the court properly determined that the mother "was unable to overcome the specific problems that led to the removal of the child from her home" ( Ramel H., 134 A.D.3d at 1592, 23 N.Y.S.3d 782 [internal quotation marks omitted]; see Matter of Jason H. [Lisa K.], 118 A.D.3d 1066, 1068, 987 N.Y.S.2d 476 [3d Dept. 2014] ), and that it is in the child's best interests to terminate the mother's parental rights (see Ireisha P., 154 A.D.3d at 1340, 63 N.Y.S.3d 623; Ramel H., 134 A.D.3d at 1592, 23 N.Y.S.3d 782 ).
To the extent that the mother contends that petitioner improperly sought to revoke the six-month suspended judgment after four months, we reject that contention. Where, as here, "there is proof that a parent has repeatedly violated significant terms of a suspended judgment, petitioner is not obligated to wait until the end of the period of suspended judgment to seek to revoke the suspended judgment" ( Matter of Alexandria A. [Ann B.], 93 A.D.3d 1105, 1106–1107, 941 N.Y.S.2d 749 [3d Dept. 2012], lv denied 19 N.Y.3d 805, 949 N.Y.S.2d 343, 972 N.E.2d 508 [2012] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.