Matter of Michael HH. ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 8, 2015 517090
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In the Matter of MICHAEL HH.,
Alleged to be a Permanently
Neglected Child.
RENSSELAER COUNTY DEPARTMENT MEMORANDUM AND ORDER
OF SOCIAL SERVICES,
Respondent;
MICHAEL II.,
Appellant.
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Calendar Date: November 12, 2014
Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.
__________
Eugene P. Grimmick, Troy, for appellant.
Stephen J. Dushko, Rensselaer County Department of Social
Services, Troy, for respondent.
Larry P. Kivitz, East Greenbush, attorney for the child.
__________
Devine, J.
Appeal from an order of the Family Court of Rensselaer
County (Cholakis, J.), entered June 27, 2013, which granted
petitioner's application, in a proceeding pursuant to Social
Services Law § 384-b, to revoke a suspended judgment, and
terminated respondent's parental rights.
Respondent is the father of Michael HH. (born in 2000). In
2008, respondent voluntarily transferred custody of the child to
petitioner and, shortly thereafter, consented to the entry of a
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one-year order of supervision that required respondent to comply
with a list of terms and conditions. Although respondent had
custody of the child for a few months in 2009, the child was
returned to foster care when respondent was found to have
violated the prior order of supervision. Petitioner filed a
permanent neglect petition against respondent in 2010 and
respondent consented to a one-year suspended judgment. When
respondent failed to satisfy certain conditions of the judgment,
petitioner commenced the instant proceeding to revoke the
suspended judgment and terminate respondent's parental rights.
Respondent moved to dismiss the petition, which motion was
supported by the attorney for the child. Family Court denied the
motion and, after completing a hearing on petitioner's
application and an in camera examination of the child, Family
Court granted the petition. Respondent appeals.
It is well settled that a suspended judgment gives a parent
who is found to have neglected his or her child "a brief grace
period within which to become a fit parent with whom the child
can be safely reunited" (Matter of Alexandria A. [Ann B.], 93
AD3d 1105, 1106 [2012], lv denied 19 NY3d 805 [2012] [internal
quotation marks and citation omitted]; see Matter of Elias QQ.
[Stephanie QQ.], 72 AD3d 1165, 1166 [2010]). Where, as here, it
is established by a preponderance of the evidence that the parent
has failed to comply with the terms and conditions of a suspended
judgment, such judgment may be revoked and parental rights may be
terminated (see Matter of Gracie YY., 34 AD3d 1053, 1054 [2006];
Matter of Amber AA., 301 AD2d 694, 696 [2003]). Furthermore,
"petitioner is not obligated to wait until the end of the period
of suspended judgment to seek to revoke the suspended judgment"
where the parent has repeatedly violated the judgment's terms and
conditions (Matter of Alexandria A. [Ann B.], 93 AD3d at 1107;
see e.g. Matter of Ronnie P. [Danielle Q.], 85 AD3d 1246, 1246
[2011]).
The suspended judgment required respondent to, among other
things, retrieve the child for scheduled visitation sessions and
return him to his foster home in a timely manner, attend meetings
with the child's counselor and undergo family counseling with his
girlfriend. The record shows that, despite the mandate that
respondent be punctual for his visitation with the child, he
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failed to do so on more than one occasion. Moreover, hearing
testimony revealed that respondent's attendance at counseling
meetings was, at best, erratic, despite continual efforts by the
child's counselor to reschedule appointments and make
accommodations for respondent. Respondent also failed to
schedule a family counseling session even after receiving
numerous reminders to do so.
Respondent and the attorney for the child, neither of whom
appeared at oral argument, now argue that respondent's failure to
undergo counseling with his fiancée or attend certain scheduled
meetings with the child's counselor were "inconsequential
violations of the suspended judgment" that should not have
resulted in the termination of respondent's parental rights.
However, the fact that respondent may not have understood the
reasoning for or agreed with the terms and conditions in the
suspended judgment did not render such provisions anything less
than compulsory, and although respondent was afforded ample
opportunity to satisfy the terms and conditions of the suspended
judgment, his failure to comply with the provisions of such
judgment exposed him to the risk of losing his parental rights
(see Matter of Cole WW. [Amanda WW.], 106 AD3d 1408, 1409 [2013],
lv denied 21 NY3d 865 [2013]; Matter of Clifton ZZ. [Latrice
ZZ.], 75 AD3d 683, 684 [2010]; Matter of Travis A. [Daisy B.], 4
AD3d 632, 633 [2004], lv denied 2 NY3d 706 [2004]). The record,
in fact, provides no indication that respondent made any
meaningful effort to address the issues that led to the child's
placement in foster care in the first instance and "take
appropriate steps to have [the child] returned to his custody"
(Matter of Madelyn D. [Direll D.], 112 AD3d 1165, 1166 [2013];
see Matter of Darren V., 61 AD3d 986, 986-987 [2009], lv denied
12 NY3d 715 [2009]; Matter of Frederick MM., 23 AD3d 951, 953
[2005]).
Although respondent's breach of the express conditions of
the suspended judgment "'does not compel the termination of [his]
parental rights, [it] is strong evidence that termination is, in
fact, in the best interests of the child[]'" (Matter of Ronnie P.
[Danielle Q.], 85 AD3d at 1247, quoting Matter of Clifton ZZ.
[Latrice ZZ.], 75 AD3d at 685). The child's foster mother
averred that he struggled emotionally when respondent's
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visitation became inconsistent and that, despite being asked to
become involved in the child's athletic activities, respondent
has failed to attend any games or practices. The child's
placement in his foster home has given him a safe, stable and
caring environment in which he has bonded with his foster parents
and siblings. Family Court, although obviously disheartened in
resolving the instant petition contrary to the child's express
wishes, ultimately determined that his best interests would be
served by terminating respondent's parental rights and clearing
the way for him to be permanently placed with the foster family.
Inasmuch as Family Court's determination has a sound and
substantial basis in the record, it shall remain undisturbed (see
Matter of Jayden T. [Amy T.], 118 AD3d 1075, 1077 [2014]; Matter
of Kellcie NN. [Sarah NN.], 85 AD3d 1251, 1252-1253 [2011];
Matter of Aidan D., 58 AD3d 906, 909 [2009]).
McCarthy, J.P., Egan Jr. and Clark, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court