Opinion
842 CAF 20-00183
11-12-2021
In the MATTER OF JAMES D., Penelope D. and Nala D. Oswego County Department of Social Services, Petitioner-Respondent; v. Leslie S., Respondent-Appellant.
DAVIS LAW OFFICE PLLC, OSWEGO (STEPHANIE N. DAVIS OF COUNSEL), FOR RESPONDENT-APPELLANT. JEFFERY G. TOMPKINS, CAMDEN, FOR PETITIONER-RESPONDENT. SCOTT A. OTIS, WATERTOWN, ATTORNEY FOR THE CHILDREN. PETER J. DIGIORGIO, JR., UTICA, ATTORNEY FOR THE CHILD.
DAVIS LAW OFFICE PLLC, OSWEGO (STEPHANIE N. DAVIS OF COUNSEL), FOR RESPONDENT-APPELLANT.
JEFFERY G. TOMPKINS, CAMDEN, FOR PETITIONER-RESPONDENT.
SCOTT A. OTIS, WATERTOWN, ATTORNEY FOR THE CHILDREN.
PETER J. DIGIORGIO, JR., UTICA, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., SMITH, CARNI, CURRAN, AND DEJOSEPH, 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 revoking a suspended judgment pursuant to Family Court Act § 633 and terminating her parental rights with respect to the subject children. Family Court had previously granted a suspended judgment for a period of 12 months upon the consent of the parties and the mother's admission of permanent neglect. Near the conclusion of the 12-month period, petitioner filed a petition to revoke the suspended judgment because the mother allegedly violated several of its terms. Following a fact-finding hearing, the court granted the petition, determining that the mother failed to comply with several terms of the suspended judgment and that the termination of her parental rights was in the best interests of the children.
The mother contends that the court erred in failing to conduct a separate dispositional hearing. We reject that contention. "It is well established that a hearing on a petition 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[ren]" ( 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] ; see Matter of Jenna D. [Paula D.] , 165 A.D.3d 1617, 1619, 85 N.Y.S.3d 318 [4th Dept. 2018], lv denied 32 N.Y.3d 912, 2019 WL 150570 [2019] ). We conclude that there was no need for an additional hearing here inasmuch as the court "conducted a lengthy hearing that addressed both the alleged violations of the suspended judgment and the child[ren's] best interests" ( Jenna D. , 165 A.D.3d at 1619, 85 N.Y.S.3d 318 ). We note that "a parent's noncompliance with the terms of [a] suspended judgment constitutes strong evidence that termination of parental rights is in a child's best interests" ( Matter of Dominic T.M. [Cassie M.] , 169 A.D.3d 1469, 1470, 93 N.Y.S.3d 513 [4th Dept. 2019], lv denied 33 N.Y.3d 902, 2019 WL 1998410, 2019 WL 1998404, 2019 WL 1998416 [2019]).
We also reject the mother's further contention that the court erred in refusing to grant her attorney's request for an adjournment when the mother failed to appear for the third day of the fact-finding hearing. "The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court" ( Matter of Anthony M. , 63 N.Y.2d 270, 283, 481 N.Y.S.2d 675, 471 N.E.2d 447 [1984] ; see Matter of Jazmine M. [Willie R.] , 185 A.D.3d 1457, 1458, 128 N.Y.S.3d 718 [4th Dept. 2020], lv denied 36 N.Y.3d 902, 2020 WL 7346603 [2020] ), and we conclude that the court did not abuse its discretion in denying the request for an adjournment here (see Matter of Anastasia R. [Jessica R.] , 133 A.D.3d 605, 605, 18 N.Y.S.3d 552 [2d Dept. 2015] ; Matter of Tripp , 101 A.D.3d 1137, 1138-1139, 957 N.Y.S.2d 389 [2d Dept. 2012] ). The mother failed to preserve for our review her further contention that the court improperly took on the role of an advocate when it examined a witness at the fact-finding hearing about the circumstances of her absence at the hearing (see Matter of Hershberger v. Brown , 185 A.D.3d 1462, 1462-1463, 128 N.Y.S.3d 720 [4th Dept. 2020] ; Matter of Wright v. Perry , 169 A.D.3d 910, 912, 95 N.Y.S.3d 108 [2d Dept. 2019], lv denied 33 N.Y.3d 906, 2019 WL 2376035 [2019] ; Matter of Robinson v. Robinson , 158 A.D.3d 1077, 1077-1078, 69 N.Y.S.3d 907 [4th Dept. 2018] ). In any event, we conclude that the contention is without merit inasmuch as the court's questions properly " ‘advance[d] the goals of truth and clarity’ " ( Matter of Veronica P. v. Radcliff A. , 126 A.D.3d 492, 492, 2 N.Y.S.3d 799 [1st Dept. 2015], lv denied 25 N.Y.3d 911, 2015 WL 3618922 [2015], quoting People v. Arnold , 98 N.Y.2d 63, 68, 745 N.Y.S.2d 782, 772 N.E.2d 1140 [2002] ). We have reviewed the mother's remaining contentions and conclude that they are without merit.