Opinion
2011-11-10
In the Matter of LESTARIYAH A.Monroe County Department of Human Services, Petitioner–Respondent;Demetrious L., Respondent–Appellant.
Appeal from an order of the Family Court, Monroe County (John J. Rivoli, J.), entered July 19, 2010 in a proceeding pursuant to Social Services Law § 384–b. The order terminated the parental rights of respondent.Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for respondent-appellant.David Van Varick, County Attorney, Rochester (Robin Unwin of Counsel), for petitioner-respondent.Tanya J. Conley, Attorney for the Child, Rochester, for Lestariyah A.MEMORANDUM:
Respondent father appeals from an order that, inter alia, revoked a suspended judgment and terminated his parental rights with respect to the child who is the subject of this proceeding. The father does not dispute that he violated the terms and conditions of the suspended judgment, but he contends that he should have been given a short extension to comply with the suspended judgment. Because the father “failed to demonstrate that ‘exceptional circumstances' required extension of the suspended judgment” ( Matter of Demario J., 61 A.D.3d 1437, 1438, 877 N.Y.S.2d 790, quoting Family Ct. Act § 633[b]; see Matter of Lourdes O., 52 A.D.3d 203, 204, 859 N.Y.S.2d 78), we conclude that Family Court did not abuse or improvidently exercise its discretion in refusing to extend the suspended judgment and in revoking it ( see Matter of Leala T., 55 A.D.3d 997, 998, 872 N.Y.S.2d 558; Matter of Brent H., 34 A.D.3d 1367, 1368, 823 N.Y.S.2d 740, lv. denied 8 N.Y.3d 802, 830 N.Y.S.2d 698, 862 N.E.2d 790; Matter of Ricky Joseph V., 24 A.D.3d 683, 684, 808 N.Y.S.2d 320).
We agree with the father, however, that the court should have granted his request for a hearing to determine whether post-termination contact between the father and the child is in the best interests of the child ( see Matter of Selena C., 77 A.D.3d 659, 909 N.Y.S.2d 84; see e.g. Matter of Tumario B., 83 A.D.3d 1412, 919 N.Y.S.2d 730, lv. denied 17 N.Y.3d 705, 929 N.Y.S.2d 96, 952 N.E.2d 1091; Matter of Seth M., 66 A.D.3d 1448, 1449, 885 N.Y.S.2d 824; Matter of Thomas B., 35 A.D.3d 1289, 825 N.Y.S.2d 416, lv. dismissed
8 N.Y.3d 936, 834 N.Y.S.2d 505, 866 N.E.2d 451). We therefore modify the order accordingly, and we remit the matter to Family Court for that purpose.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting respondent's request for a hearing to determine whether he should be afforded post-termination contact with the child who is the subject of this proceeding, and the matter is remitted to Family Court, Monroe County, for that purpose and as modified the order is affirmed without costs.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, and LINDLEY, JJ., concur.