Opinion
2015-04-22
In the Matter of JAVON J. (Anonymous). Orange County Department of Social Services, petitioner-respondent; Antoine J. (Anonymous), respondent-appellant, et al., respondent. (Proceeding No. 1) In the Matter of Antoine J. (Anonymous). Orange County Department of Social Services, petitioner-respondent; Antoine J. (Anonymous), respondent-appellant, et al., respondent. (Proceeding No. 2).
Victoria B. Campbell, Port Jervis, N.Y., for appellant. Langdon C. Chapman, County Attorney, Goshen, N.Y. (Stephanie Bazile of counsel), for petitioner-respondent.
Victoria B. Campbell, Port Jervis, N.Y., for appellant. Langdon C. Chapman, County Attorney, Goshen, N.Y. (Stephanie Bazile of counsel), for petitioner-respondent.
Neal D. Futerfas, White Plains, N.Y., attorney for the children.
RANDALL T. ENG, P.J., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and SHERI S. ROMAN, JJ.
Appeal from an order of fact-finding and disposition of the Family Court, Orange County (Lori Currier Woods, J.), entered March 5, 2014. The order, after fact-finding and dispositional hearings, found that the father permanently neglected the subject children, terminated his parental rights, and transferred the guardianship and custody of the subject children to the Orange County Department of Social Services for the purpose of adoption. The appeal from the order of fact-finding and disposition brings up for review an order of the same court entered December 5, 2013, which denied the father's motion for recusal.
ORDERED that the order of fact-finding and disposition is modified, on the facts and in the exercise of discretion, by deleting the provisions thereof terminating the father's parental rights and transferring custody and guardianship of the subject children to the Orange County Department of Social Services for the purpose of adoption; as so modified, the order of fact-finding and disposition is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Orange County, for a new dispositional hearing and a new disposition thereafter.
Initially, contrary to the father's contention, there is no basis to disturb the Family Court's denial of his motion for recusal ( see Daulat v. Helms Bros., Inc., 57 A.D.3d 938, 871 N.Y.S.2d 321).
The Family Court properly found that the father permanently neglected the subject children ( seeSocial Services Law § 384–b[7][a] ). The petitioner established, by clear and convincing evidence, that both prior to and during the father's incarceration, it made diligent efforts to assist the father in maintaining contact with the children and planning for their future ( see Matter of Star Leslie W., 63 N.Y.2d 136, 142–143, 481 N.Y.S.2d 26, 470 N.E.2d 824; Matter of Sheila G., 61 N.Y.2d 368, 380–381, 474 N.Y.S.2d 421, 462 N.E.2d 1139). These pre-incarceration efforts included scheduling and facilitating visitation and developing a service plan ( seeSocial Services Law § 384–b[7][f]; Matter of Hailey ZZ. [Ricky ZZ.], 19 N.Y.3d 422, 429, 948 N.Y.S.2d 846, 972 N.E.2d 87; Matter of Star Leslie W., 63 N.Y.2d at 142, 481 N.Y.S.2d 26, 470 N.E.2d 824). The petitioner's efforts during the father's incarceration included informing him of the children's well-being and progress, encouraging him to maintain contact with the children, and requesting that he suggest any relatives as potential placement resources for the children ( see Matter of Hailey ZZ. [Ricky ZZ.], 19 N.Y.3d at 430, 948 N.Y.S.2d 846, 972 N.E.2d 87; Matter of Angel R.F. [Nicholas F.], 114 A.D.3d 781, 980 N.Y.S.2d 528; Matter of Joannis P. [Joseph Q.], 110 A.D.3d 1188, 1190, 974 N.Y.S.2d 139; Matter of Zechariah J. [Valrick J.], 84 A.D.3d 1087, 1088, 923 N.Y.S.2d 653; Matter of Imani M., 61 A.D.3d 870, 877 N.Y.S.2d 417). Despite these efforts, the father failed to plan for the children's future by failing to complete the necessary programs ( seeSocial Services Law § 384–b[7][c]; Matter of Davina R.M.R.L. [Jennifer A.], 123 A.D.3d 1126, 1127, 999 N.Y.S.2d 188; Matter of Beyonce H. [Baranaca H.], 85 A.D.3d 1168, 927 N.Y.S.2d 121). Accordingly, the Family Court properly determined that the father permanently neglected the subject children.
However, under the particular circumstances of this case, the Family Court improvidently exercised its discretion in terminating the father's parental rights. The record indicates that the father made sufficient progress toward strengthening his relationship with the subject children ( see Matter of Christopher Lee B., 65 A.D.3d 549, 550, 882 N.Y.S.2d 913). Furthermore, the older child is residing at a residential treatment center for children with emotional and behavioral issues, and there is no indication that he has any prospects for foster placement or adoption. Although the younger child resides with a foster family, the foster parents have indicated that they do not wish to adopt him out of concern that they could not handle him. Thus, on this record, there is no indication that termination of the father's parental rights would increase the subject children's opportunities for adoptive placement ( see Matter of Phoenix D.A. [Jessie A.], 123 A.D.3d 823, 824, 998 N.Y.S.2d 214).
Under these circumstances, the Family Court's termination of the father's parental rights was not in the best interests of the children and, instead, the court should have suspended judgment for one year ( see Matter of Christopher Lee B., 65 A.D.3d at 550, 882 N.Y.S.2d 913). Since more than one year has passed since the dispositional hearing was held, the entry of a suspended judgment at this time would be imprudent ( seeFamily Ct. Act § 633; Matter of Christopher Lee B., 65 A.D.3d at 550, 882 N.Y.S.2d 913). Accordingly, we remit the matter to the Family Court, Orange County, for a new dispositional hearing, and a new disposition thereafter ( see Matter of Christopher Lee B., 65 A.D.3d at 550, 882 N.Y.S.2d 913; Matter of Shaquill Dywon M., 50 A.D.3d 1142, 1145, 856 N.Y.S.2d 670). At the new dispositional hearing, the Family Court shall consider, in light of the present circumstances of the father and the subject children, whether the entry of a suspended judgment would be in the best interests of the children ( see Matter of Timmia S. [Timmie S.], 111 A.D.3d 838, 841, 975 N.Y.S.2d 746).
The father's remaining contention is without merit.