Matter of Maykayla FF. , 34 N.Y.S.3d 777 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 14, 2016 520963
________________________________
In the Matter of MAYKAYLA FF.
and Another, Permanently
Neglected Children.
WASHINGTON COUNTY DEPARTMENT
OF SOCIAL SERVICES, MEMORANDUM AND ORDER
Respondent;
EUGENE FF.,
Appellant.
________________________________
Calendar Date: June 3, 2016
Before: Peters, P.J., Lahtinen, Egan Jr., Rose and Clark, JJ.
__________
Jeffrey E. McMorris, Glens Falls, for appellant.
Roger A. Wickes, County Attorney, Fort Edward (Daniel S.
Martindale of counsel), for respondent.
Elizabeth A. Donahue, Glens Falls, attorney for the
children.
__________
Rose, J.
Appeal from an order of the Family Court of Washington
County (Michelini, J.), entered March 10, 2015, which, in a
proceeding pursuant to Social Services Law § 384-b, granted
petitioner's motion to revoke a suspended judgment and terminated
respondent's parental rights.
Respondent is the father of a daughter and a son (born in
2008 and 2010, respectively). Since August 2012, he has been
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serving an indeterminate prison term for his conviction of
burglary in the third degree. Aside from a brief period between
June and November 2012, the children have been in petitioner's
custody and care continuously since May 2011. In 2013,
petitioner commenced this permanent neglect proceeding alleging,
among other things, that respondent had failed to plan for the
future of the children for a period of over one year. In a
November 2013 order entered on respondent's consent, Family Court
(Pritzker, J.) adjudicated the children to be permanently
neglected and issued a one-year suspended judgment. In November
2014, petitioner moved for an order revoking the suspended
judgment and terminating respondent's parental rights. Following
a hearing, Family Court (Michelini, J.) granted that relief.
Respondent appeals.
We affirm. Respondent's primary argument for reversal is
that he could not violate the condition of the suspended judgment
requiring him to "maintain a safe and stable home if released
during [the] [s]uspended [j]udgment period" because he was
incarcerated for that entire time. In other words, respondent
argues that his release from prison is an unsatisfied condition
precedent to his need to comply with the requirement that he
maintain a stable home environment for the children. However,
the record indicates that, prior to Family Court's issuance of
the suspended judgment, respondent represented that he would be
released while the suspended judgment was still effective, making
it reasonable for the court to assume that respondent would have
an opportunity to comply with all of its terms and conditions.
Ultimately, respondent was not released due to, among other
things, his admitted failure to complete a substance abuse
treatment program. In any event, it is well established that
"literal compliance with the terms of the suspended judgment will
not suffice to prevent a finding of a violation. A parent must
[also] show that progress has been made to overcome the specific
problems which led to the removal of the child[ren]" (Matter of
Fynn S., 56 AD3d 959, 960 [2008] [internal quotation marks,
brackets and citations omitted]; see Matter of Jonathan J., 47
AD3d 992, 993 [2008], lv denied 10 NY3d 706 [2008]; Matter of
Thomas JJ., 14 AD3d 953, 955 [2005]); this respondent failed to
do.
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At the hearing, respondent testified that his initial
permanency plan was to have the children's mother care for them
while he was incarcerated. That plain failed, however, when the
mother, who was herself the subject of a separate neglect
proceeding initiated by petitioner, relinquished her parental
rights. After petitioner informed respondent of this
development, he sent letters to several family members asking
them to petition for custody of the children. With the exception
of respondent's sister, whose custody petition was denied,
respondent received no responses to his requests. While
respondent arguably made a good faith effort to develop a
permanency plan for his children during his incarceration,
"'[g]ood faith alone is not enough[;] the plan must be realistic
and feasible'" (Matter of Gregory B., 74 NY2d 77, 87 [1989],
quoting Matter of Star Leslie W., 63 NY2d 136, 143 [1984]; accord
Matter of Lawrence KK. [Lawrence LL.], 72 AD3d 1233, 1235 [2010],
lv denied 14 NY3d 713 [2010]). Similarly unrealistic and
infeasible is respondent's current plan to allow petitioner to
retain custody of the children until he is released, which, if he
serves out his full term of imprisonment, will not be until July
2018 (see Matter of Hailey ZZ. [Ricky ZZ.], 19 NY3d 422, 430-431
[2012]; Matter of Gregory B., 74 NY2d at 89-90; Matter of Johanna
M. [John L.], 103 AD3d 949, 950-951 [2013], lv denied 21 NY3d 855
[2013]). As for the likelihood of an earlier release, we note
that respondent has been in prison twice before, received parole
both times and violated that parole both times. Thus, we find
that Family Court's determination that respondent violated the
terms of the suspended judgment was proper, inasmuch as
petitioner proved by a preponderance of the evidence that
respondent had not corrected his longstanding inability to
realistically plan for the children's future (see Matter of
Thomas JJ., 14 AD3d at 955; Matter of Jennifer VV., 241 AD2d 622,
623 [1997]).
We also find unavailing respondent's argument that Family
Court's termination of his parental rights was not in the
children's best interests. "While a parent's failure to comply
with the conditions of a suspended judgment does not
automatically compel termination of parental rights, that
noncompliance constitutes strong evidence that termination is, in
fact, in the best interests of the child" (Matter of Jason H.
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[Lisa K.], 118 AD3d 1066, 1068 [2014] [internal quotation marks
and citations omitted]; see Matter of Hazel OO. [Roseanne OO.],
133 AD3d 1126, 1128 [2015]).
In addition to respondent's violation of the suspended
judgment, testimony at the hearing indicated that the children
adamantly expressed their lack of desire to visit respondent in
prison and would, at times, exhibit physically aggressive
behavior when informed of an impending visit. When they did
visit respondent, the children frequently misbehaved – which the
father could not control – and, upon their return, would take
multiple weeks to return to their normal behavioral patterns.
Furthermore, the children have been in foster care for most of
their lives and lived with the same foster family since June
2013. The family has expressed a willingness to adopt the
children, and the foster mother testified that both children are
developmentally delayed and have behavioral issues, which she has
had some success in correcting through therapeutic services and
parenting techniques. Respondent, meanwhile, displayed a general
lack of knowledge about the children's special needs and did not
offer a realistic plan to ensure that those needs would be met if
he were to reassume custody. Accordingly, we find that the
record provides a sound and substantial basis for Family Court's
conclusion that terminating respondent's parental rights was in
the children's best interests (see Matter of Sequoyah Z. [Melissa
Z.], 127 AD3d 1518, 1521 [2015], lvs denied 25 NY3d 911, 912
[2015]; Matter of Jason H. [Lisa K.], 118 AD3d at 1068; Matter of
Madelyn D. [Direll D.], 112 AD3d 1165, 1166-1167 [2013]).
Peters, P.J., Lahtinen, Egan Jr. and Clark, JJ., concur.
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ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court