Opinion
CAF 03-00335
June 13, 2003.
Appeal from an order of Family Court, Monroe County (Kohout, J.), entered April 25, 2002, which dismissed a petition seeking to terminate the parental rights of respondent.
CHARLES S. TURNER, COUNTY ATTORNEY, ROCHESTER (RONALD A. CASE OF COUNSEL), FOR PETITIONER-APPELLANT.
ARDETH L. HOUDE, LAW GUARDIAN, ROCHESTER, FOR MELISSA G.
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Petitioner appeals from an order of Family Court dismissing a petition seeking to terminate the parental rights of respondent on the ground that she had violated the terms of a suspended judgment ( see generally Family Ct Act 631, 633; 22 NYCRR 205.50). The court properly concluded that petitioner had failed to establish by a preponderance of the evidence that respondent had violated the terms of the suspended judgment ( see Matter of Nicole Lee B., 256 A.D.2d 1103, 1103-1104; see generally Matter of Krystal M., 299 A.D.2d 965, 966; Matter of Rebecca F., 286 A.D.2d 985, 986; Matter of Gerald M., 112 A.D.2d 6). The suspended judgment recites that respondent would "have monitored visitation *** arranged *** consistent with the terms of" an order of extension previously entered in an underlying neglect proceeding. We conclude that the reference to the terms of the underlying order of extension did not effectively incorporate that prior order's prohibition on the presence of unapproved adult males during visits. Therefore, we agree with the court's conclusion that respondent did not violate the terms of the suspended judgment by allowing unapproved adult males to be present during visits with her child ( see Nicole Lee B., 256 A.D.2d at 1103-1104).
Under the circumstances, we reject petitioner's contention that the court abused its discretion in denying petitioner's motion seeking leave to serve a supplemental petition setting forth additional allegations that respondent violated the terms of the suspended judgment.