Opinion
1455 CAF 18-00182
02-01-2019
In the MATTER OF MATTHEW S., Jr., and Makaila S. Erie County Department of Social Services, Petitioner–Respondent; v. Matthew S., Respondent–Appellant.
DAVID J. PAJAK, ALDEN, FOR RESPONDENT–APPELLANT. KATHERINE E. MEIER–DAVIS, BUFFALO, FOR PETITIONER–RESPONDENT. JOHN L. TRIGILIO, BUFFALO, ATTORNEY FOR THE CHILDREN.
DAVID J. PAJAK, ALDEN, FOR RESPONDENT–APPELLANT.
KATHERINE E. MEIER–DAVIS, BUFFALO, FOR PETITIONER–RESPONDENT.
JOHN L. TRIGILIO, BUFFALO, ATTORNEY FOR THE CHILDREN.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent father appeals from an order terminating his parental rights with respect to the subject children based on a finding of permanent neglect, and freeing the children for adoption. Contrary to the father's contention, Family Court did not abuse its discretion in denying his request for a suspended judgment. A suspended judgment "is a brief grace period designed to prepare the parent to be reunited with the child" ( Matter of Michael B., 80 N.Y.2d 299, 311, 590 N.Y.S.2d 60, 604 N.E.2d 122 [1992] ; see Matter of Danaryee B. [Erica T.], 151 A.D.3d 1765, 1766, 56 N.Y.S.3d 755 [4th Dept. 2017] ; Matter of James P. [Tiffany H.], 148 A.D.3d 1526, 1527, 49 N.Y.S.3d 209 [4th Dept. 2017], lv denied 29 N.Y.3d 908, 2017 WL 2367946 [2017] ; see also Family Ct Act § 633 ), and "is only appropriate where the parent has clearly demonstrated that [he or she] deserve[s] another opportunity to show that [he or she has] the ability to be a fit parent" ( Matter of Illion RR. [Rachael SS.], 154 A.D.3d 1126, 1128, 62 N.Y.S.3d 220 [3d Dept. 2017], lv denied 30 N.Y.3d 908, 2018 WL 326639 [2018] [internal quotation marks omitted] ). The determination of whether to grant a suspended judgment must be based solely on the best interests of the child (see § 631).
Here, " ‘there was no evidence that [the father] had a realistic, feasible plan to care for the children’ " ( Matter of Nicholas B. [Eleanor J.], 83 A.D.3d 1596, 1598, 921 N.Y.S.2d 762 [4th Dept. 2011], lv denied 17 N.Y.3d 705, 2011 WL 2566514 [2011] ; see Matter of Sean W. [Brittany W.], 87 A.D.3d 1318, 1319, 930 N.Y.S.2d 700 [4th Dept. 2011], lv denied 18 N.Y.3d 802, 2011 WL 6223145 [2011] ), and the court's determination that, even if given more time, the father was not likely to change sufficiently to enable him to parent the children is entitled to great deference (see Matter of Brendan S., 39 A.D.3d 1189, 1190, 834 N.Y.S.2d 602 [4th Dept. 2007] ; Matter of Danielle N., 31 A.D.3d 1205, 1205, 817 N.Y.S.2d 841 [4th Dept. 2006] ; Matter of Michael V., 279 A.D.2d 668, 669, 717 N.Y.S.2d 805 [3d Dept. 2001], lv denied 96 N.Y.2d 709, 725 N.Y.S.2d 639, 749 N.E.2d 208 [2001] ). We therefore conclude that the minimal progress made by the father in the weeks preceding the dispositional hearing " ‘was not sufficient to warrant any further prolongation of the [children's] unsettled familial status’ " ( James P., 148 A.D.3d at 1527, 49 N.Y.S.3d 209 ; see Matter of Jose R., 32 A.D.3d 1284, 1285, 821 N.Y.S.2d 719 [4th Dept. 2006], lv denied 7 N.Y.3d 718, 827 N.Y.S.2d 689, 860 N.E.2d 991 [2006] ).