Opinion
997 CAF 16–02089
10-05-2018
In the MATTER OF JENNA D. Ontario County Department of Social Services Child Protective Unit, Petitioner–Respondent; v. Paula D., Respondent–Appellant.
CARA A. WALDMAN, FAIRPORT, FOR RESPONDENT–APPELLANT. GARY L. CURTISS, COUNTY ATTORNEY, CANANDAIGUA (HOLLY A. ADAMS OF COUNSEL), FOR PETITIONER–RESPONDENT. VICTORIA L. KING, CANANDAIGUA, ATTORNEY FOR THE CHILD.
CARA A. WALDMAN, FAIRPORT, FOR RESPONDENT–APPELLANT.
GARY L. CURTISS, COUNTY ATTORNEY, CANANDAIGUA (HOLLY A. ADAMS OF COUNSEL), FOR PETITIONER–RESPONDENT.
VICTORIA L. KING, CANANDAIGUA, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order that, inter alia, revoked a suspended judgment and terminated her parental rights with respect to the subject child. Family Court (Doran, J.) had previously granted a suspended judgment for a period of six months upon the consent of the parties and the mother's admission of permanent neglect. Less than a month after the suspended judgment was in effect, petitioner moved to revoke it because the mother allegedly violated several of its terms. Following a fact-finding hearing, the court (Kocher, J.) determined that the mother failed to comply with several terms of the suspended judgment and that termination of her parental rights was in the best interests of the child.
The mother contends that the court prematurely revoked the suspended judgment because a copy of the suspended judgment was not furnished to her before petitioner filed its motion. Inasmuch as the mother raises that issue for the first time on appeal, it is not properly before us (see Matter of Dutchess County Dept. of Social Servs. v. Judy M., 227 A.D.2d 478, 479, 643 N.Y.S.2d 126 [2d Dept. 1996] ; see also Matter of Kim Shantae M., 221 A.D.2d 199, 199, 633 N.Y.S.2d 151 [1st Dept. 1995] ). In any event, the mother's testimony at the hearing established that she understood and agreed to the terms of the suspended judgment on the date that the suspended judgment was granted (see Kim Shantae M., 221 A.D.2d at 199, 633 N.Y.S.2d 151 ). Petitioner, moreover, was not obligated to wait six months until the suspended judgment expired before filing its motion (see Matter of Dah'Marii G. [Cassandra G.], 156 A.D.3d 1479, 1480, 65 N.Y.S.3d 840 [4th Dept. 2017] ; Matter of Emily A. [Gina A.], 129 A.D.3d 1473, 1474, 11 N.Y.S.3d 751 [4th Dept. 2015] ).
Contrary to the mother's further contention, a preponderance of the evidence at the hearing establishes that she violated several terms of the suspended judgment (see Matter of Michael HH. [Michael II. ], 124 A.D.3d 944, 944, 1 N.Y.S.3d 442 [3d Dept. 2015] ; Matter of Ronald O., 43 A.D.3d 1351, 1352, 842 N.Y.S.2d 801 [4th Dept. 2007] ), and the record does not support the mother's characterization of those violations as inconsequential, isolated or inadvertent (see Michael HH., 124 A.D.3d at 945, 1 N.Y.S.3d 442 ).
We reject the mother's contention that the court erred in failing to conduct a separate dispositional hearing to address the child's best interests. "It is well established that a hearing on a [motion] alleging that the terms of a suspended judgment have been violated is part of the dispositional phase of the permanent neglect proceeding, and that the disposition shall be based on the best interests of the child" ( Matter of Alisa E. [Wendy F.], 114 A.D.3d 1175, 1176, 980 N.Y.S.2d 193 [4th Dept. 2014], lv denied 23 N.Y.3d 901, 2014 WL 1704713 [2014] ). Here, the court conducted a lengthy hearing that addressed both the alleged violations of the suspended judgment and the child's best interests, and there was no need for an additional hearing (see Matter of Jeremiah J.W. [Tionna W.], 134 A.D.3d 848, 849, 22 N.Y.S.3d 215 [2d Dept. 2015], lv dismissed 27 N.Y.3d 1061, 35 N.Y.S.3d 294, 54 N.E.3d 1166 [2016] ; see also Kim Shantae M., 221 A.D.2d at 200, 633 N.Y.S.2d 151 ).
Finally, a preponderance of the evidence supports the court's determination that it was in the child's best interests to terminate the mother's parental rights (see Matter of Mikel B. [Carlos B.], 115 A.D.3d 1348, 1349, 984 N.Y.S.2d 253 [4th Dept. 2014] ). "Although [the mother's] breach of the express conditions of the suspended judgment does not compel the termination of [her] parental rights, [it] is strong evidence that termination is, in fact, in the best interests of the child[ ]" ( Michael HH., 124 A.D.3d at 945–946, 1 N.Y.S.3d 442 [internal quotation marks omitted] ). "The court's determination that [the mother] was not likely to change sufficiently to enable her to parent the child[ ] is entitled to great deference[,]" and we thus conclude that "any progress that [the mother] made was not sufficient to warrant any further prolongation of the child[ ]'s unsettled familial status" ( Matter of Brendan S., 39 A.D.3d 1189, 1190, 834 N.Y.S.2d 602 [4th Dept. 2007] [internal quotation marks omitted] ), and termination of the mother's parental rights was therefore proper (see Matter of Douglas H. [Catherine H.], 1 A.D.3d 824, 825–826, 767 N.Y.S.2d 173 [3d Dept. 2003], lv denied 2 N.Y.3d 701, 778 N.Y.S.2d 459, 810 N.E.2d 912 [2004] ).