H., RAMEL, MTR. OF ( 2015 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1422
CAF 14-00454
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.
IN THE MATTER OF RAMEL H.
--------------------------------------------
ONEIDA COUNTY DEPARTMENT OF SOCIAL SERVICES, MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;
TENESE T., RESPONDENT-APPELLANT.
PAUL A. NORTON, CLINTON, FOR RESPONDENT-APPELLANT.
JOHN HERBOWY, UTICA, FOR PETITIONER-RESPONDENT.
WILLIAM L. KOSLOSKY, ATTORNEY FOR THE CHILD, UTICA.
Appeal from an order of the Family Court, Oneida County (Randal
B. Caldwell, J.), entered March 5, 2014 in a proceeding pursuant to
Social Services Law § 384-b. The order revoked a suspended judgment
and terminated the parental rights of respondent.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: In this permanent neglect proceeding, Family Court
entered a suspended judgment following respondent mother’s admission
to permanent neglect of the subject child. The court, inter alia,
placed the child in foster care and issued an order of supervision
directing the mother to comply with certain terms and conditions of
the suspended judgment. Prior to the scheduled termination of the
suspended judgment, the court released the child from the foster care
placement and ordered him to be returned to the mother’s care, but
directed that the suspended judgment and order of supervision continue
and that the mother comply with its terms until it expired.
Petitioner thereafter moved to revoke the suspended judgment, and the
mother appeals from an order that, among other things, granted
petitioner’s motion and terminated her parental rights with respect to
the subject child.
The mother initially contends that, by terminating the subject
child’s placement in foster care and returning him to her custody, the
court thereby also terminated the suspended judgment, which in turn
divested the court of jurisdiction over the petition to terminate her
parental rights. Even assuming, arguendo, that the mother preserved
her contention for our review (see generally Matter of Imani J., 29
AD3d 467, 467, lv denied 7 NY3d 842, cert denied 549 US 1228), we
conclude that the applicable statute provides that, after placing a
-2- 1422
CAF 14-00454
child in foster care, “the court shall maintain jurisdiction over the
case until the child is discharged from placement and all orders
regarding supervision, protection or services have expired” (Family Ct
Act § 1088). Here, the order of supervision had not expired, and thus
her contention is without merit. In addition, the mother’s contention
is belied by the record, which reflects that, when the court released
the child from foster care to the mother’s custody, it unequivocally
stated that “the prior order that [the court] just referenced will
continue[;] that suspended judgment will run through November 1st of
this year with the terms and conditions as set forth in that order.”
The court also instructed the mother that she will “need to abide by
the terms and conditions” of the prior order. Consequently, the
record establishes that the court did not terminate the suspended
judgment (see generally Matter of Christopher G. [Priscilla H.], 82
AD3d 1549, 1550-1551).
We reject the mother’s further contention that the court erred in
revoking the suspended judgment and terminating her parental rights.
Where petitioner establishes “by a preponderance of the evidence that
there has been noncompliance with any of the terms of the suspended
judgment, the court may revoke the suspended judgment and terminate
parental rights” (Matter of Ronald O., 43 AD3d 1351, 1352; see Family
Ct Act § 633 [f]; Matter of Terry L.G., 6 AD3d 1144, 1144). Here, the
court properly concluded that the mother violated numerous terms of
the suspended judgment, that “she was unable to overcome the specific
problems that led to the removal of the child from her home” (Matter
of Erie County Dept. of Social Servs. v Anthony P., 45 AD3d 1384,
1384), and that it is in the child’s best interests to terminate the
mother’s parental rights (see Matter of Savanna G. [Danyelle M.], 118
AD3d 1482, 1483; Matter of Christopher J., 63 AD3d 1662, 1662, lv
denied 13 NY3d 706).
Entered: December 31, 2015 Frances E. Cafarell
Clerk of the Court