Opinion
10-26-2016
In the Matter of TYSHAWN S. (Anonymous). Suffolk County Department of Social Services, respondent; Shana S. (Anonymous), et al., appellants.
Gina M. Scelta, Huntington, NY, for appellant Shana S. Marina M. Martielli, East Quogue, NY, for appellant David T. Dennis M. Brown, County Attorney, Central Islip, NY (Christina E. Farrell of counsel), for respondent. Thomas W. McNally, Huntington, NY, attorney for the child.
Gina M. Scelta, Huntington, NY, for appellant Shana S.
Marina M. Martielli, East Quogue, NY, for appellant David T.
Dennis M. Brown, County Attorney, Central Islip, NY (Christina E. Farrell of counsel), for respondent.
Thomas W. McNally, Huntington, NY, attorney for the child.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.
Separate appeals by the mother and the father from (1) a decision of the Family Court, Suffolk County (Caren Loguercio, J.), dated June 26, 2015, and (2) an order of fact-finding and disposition of that court dated July 10, 2015. The order of fact-finding and disposition, after fact-finding and dispositional hearings, upon the decision, found, upon the mother's consent, that the mother had neglected the subject child, found that both parents had permanently neglected the subject child and that the father also abandoned the subject child, terminated the parental rights of both parents, and transferred guardianship and custody of the subject child to the Suffolk County Department of Social Services for the purpose of adoption.
ORDERED that the appeals from the decision are dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 509–510, 472 N.Y.S.2d 718 ); and it is further,
ORDERED that the mother's appeal from so much of the order of fact-finding and disposition as found that the mother had neglected the subject child is dismissed, without costs or disbursements; and it is further,
ORDERED that the order of fact-finding and disposition is affirmed insofar as reviewed, without costs or disbursements.
Suffolk County Department of Social Services (hereinafter the agency) commenced this proceeding pursuant to Social Services Law § 384–b to terminate the parental rights of the mother on the basis of permanent neglect and to terminate the parental rights of the father on the basis of permanent neglect and abandonment. After fact-finding and dispositional hearings, the Family Court found, inter alia, that the mother permanently neglected the subject child and that the father permanently neglected and abandoned the subject child. It then terminated their parental rights and transferred guardianship and custody of the subject child to the agency for the purpose of adoption. The mother and the father separately appeal.
The mother is not aggrieved by the finding that she had neglected the subject child, because she consented to the finding. Therefore, her appeal from so much of the order of fact-finding and disposition as made that finding must be dismissed (see Matter of Kira J. [Laskisha J.], 85 A.D.3d 1030, 925 N.Y.S.2d 854 ).
Contrary to the mother's contention, the agency established, by clear and convincing evidence, that it made diligent efforts to encourage and strengthen her relationship with the subject child (see Matter of Beyonce H. [Baranaca H.], 85 A.D.3d 1168, 1169, 927 N.Y.S.2d 121 ). These efforts included, inter alia, making referrals to parenting services, arranging a mental health evaluation, and facilitating visitation. Despite these efforts, the mother failed to plan for the child's future and failed to visit the child on a regular, consistent basis (see Matter of Dabari S., 29 A.D.3d 593, 818 N.Y.S.2d 91 ). Although the mother participated and completed a parenting course and underwent a mental health evaluation, those acts were not sufficient to preclude a finding of permanent neglect, since there was no real change in her ability to care for her child or to adequately provide for his future (see Matter of “ Female” C., 55 A.D.3d 603, 866 N.Y.S.2d 220 ).
In addition, the evidence adduced at the fact-finding hearing established, by clear and convincing evidence, that the father abandoned the subject child during the six-month period before the filing of the petition (see Social Services Law § 384–b[4][b][5][a] ; Matter of Andrea B., 66 A.D.3d 770, 770–771, 887 N.Y.S.2d 213 ). In light of our determination, we need not address the father's contention that he did not permanently neglect the subject child (see Matter of Akeelah D. C.-S. [Cheniqua C.-S.], 126 A.D.3d 967, 968, 6 N.Y.S.3d 111 ; Matter of Lee P., 304 A.D.2d 760, 761, 757 N.Y.S.2d 786 ; Matter of Messiah Quwan D., 288 A.D.2d 383, 733 N.Y.S.2d 218 ).
Further, the Family Court did not err in declining to grant the father a suspended judgment. A suspended judgment is not a permissible disposition in a proceeding pursuant to Social Services Law § 384–b(4)(b) (see Matter of Alexandryia M.M.B. [Heather C.], 132 A.D.3d 664, 665, 17 N.Y.S.3d 321 ; Matter of Carter A. [Jason A.], 111 A.D.3d 1181, 1183, 977 N.Y.S.2d 415 ; Matter of Erving BB. [Lynette EE.], 111 A.D.3d 1102, 1104, 976 N.Y.S.2d 255 ; Matter of Shavenon Edwin N. [Francisco N.], 84 A.D.3d 444,445, 922 N.Y.S.2d 65 ). The court also properly determined that it was not in the child's best interest to grant the mother a suspended judgment (see Matter of Kaseem J., 52 A.D.3d 1321, 1322, 860 N.Y.S.2d 369 ).