IN RE: CHANEL C. (Anonymous).

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: CHANEL C. (Anonymous). Heart Share Human Services of New York, Roman Catholic Diocese of Brooklyn, appellant-respondent; Vanessa N. (Anonymous), respondent-appellant. (Proceeding No. 1) In the Matter of Layla C.C. (Anonymous). Heart Share Human Services of New York, Roman Catholic Diocese of Brooklyn, appellant-respondent; Vanessa N. (Anonymous), respondent-appellant. (Proceeding No. 2).

Decided: June 11, 2014

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, RUTH C. BALKIN, and ROBERT J. MILLER, JJ. Wingate, Kearney & Cullen, LLP, Brooklyn, N.Y. (Allyson L. Stein of counsel), for appellant-respondent. Brooklyn Defender Services, Family Defense Practice, Brooklyn, N.Y. (Lauren Shapiro and Crowell & Moring LLP [Bruce D. DeRenzi and Sean E. Jackson], of counsel), for respondent-appellant. Scott A. Rosenberg, New York, N.Y. (Tamara A. Steckler and Mark Dellaquila of counsel), attorney for the children.

In two related proceedings pursuant to Social Services Law § 384–b to terminate parental rights on the ground of permanent neglect, the petitioner appeals (1) from an order of the Family Court, Kings County (Beckoff, J.), dated June 12, 2013, which denied its motion for leave to renew those branches of the petitions which sought to terminate the mother's parental rights, which branches had been, in effect, denied in two prior orders of the same court, both dated May 21, 2013, and (2), as limited by its brief, from so much of two orders of fact-finding and disposition of the same court, both dated June 24, 2013 (one as to each child), as, after fact-finding and dispositional hearings, and upon a finding that the mother had permanently neglected the subject children, failed to terminate the mother's parental rights and instead suspended judgment against her provided that she complied with enumerated terms and conditions, and the mother cross-appeals from so much of the orders of fact-finding and disposition as found that she had permanently neglected the subject children.

ORDERED that the appeal from the order dated June 12, 2013, is dismissed, without costs or disbursements; and it is further,

ORDERED that the orders of fact-finding and disposition are reversed insofar as appealed from, on the facts and in the exercise of discretion, without costs or disbursements, those branches of the petitions which sought to terminate the mother's parental rights are granted, the orders dated May 21, 2013, and the order dated June 12, 2013, are vacated, and custody and guardianship of the subject children is transferred to Heart Share Human Services of New York, Roman Catholic Diocese of Brooklyn, for the purpose of adoption; and it is further;

ORDERED that the orders of fact-finding and disposition are affirmed insofar as cross-appealed from, without costs or disbursements.

The appeal from the order dated June 12, 2013, denying leave to renew, must be dismissed as no appeal lies as of right from a nondispositional order of the Family Court in a permanent neglect proceeding pursuant to Social Services Law § 384–b (see Family Ct Act § 1112[a] ), and leave to appeal has not been granted and in any event the appeal is rendered academic in light of our determination on the appeals from the orders of fact-finding and disposition.

Contrary to the mother's contention, the Family Court properly found that Heart Share Human Services of New York, Roman Catholic Diocese of Brooklyn (hereinafter the agency), exercised diligent efforts to strengthen her relationship with the subject children by, inter alia, developing a service plan, providing her with referrals, attempting to maintain contact with her by telephone and letter both before and after her move to Florida, and providing prepaid transportation from Florida to New York to visit the children (see Matter of Tashameeka Valerie P. [Priscilla P.], 102 AD3d 614, 615; Matter of Carmine A.B. [Nicole B.], 101 AD3d711, 712–713; Matter of Jasper QQ., 64 AD3d1017, 1020; Matter of Paulette B., 270 A.D.2d 949; Matter of Jennifer VV., 99 A.D.2d 882, 883). Despite these efforts, the mother failed to maintain regular contact with the children, either by telephone or by in-person visits. Likewise, although she completed anger management and parenting skills classes, the mother failed over several years to address the primary obstacle to her reunification with the children by submitting to random drug testing and participating in a drug treatment program (see Matter of Jamie M., 63 N.Y.2d 388, 393; Matter of Darryl A.H. [Olga Z.], 109 AD3d824; Matter of Tarmara F.J. [Jaineen J.], 108 AD3d 543, 543–544; Matter of Peter C., Jr. [Peter C.], 88 AD3d702, 703; Matter of Fatima G., 64 AD3d653, 654; Matter of Noelia T., 61 AD3d 983, 984; Matter of Demetrie T.J.C., 57 AD3d392, 393; Matter of Justina Rose D., 28 AD3d659, 660). Accordingly, the mother failed to “take steps to correct the conditions that led to the removal of the children from the home” and failed to “genuinely take[ ] steps toward recognizing [her] problems and changing [her] attitudes and patterns of behavior” (Matter of Jennifer R., 29 AD3d1005, 1006; see Matter of Zechariah J. [Valrick J.], 84 AD3d1087, 1087–1088; Matter of Jonathan B. [Linda S.], 84 AD3d1078, 1079). Under these circumstances, the Family Court correctly found that, despite diligent efforts by the agency, the mother failed to adequately plan for the children's future and, therefore, permanently neglected the children (see Social Services Law § 384–b[4], [7][a]; Matter of Michael B., 80 N.Y.2d 299, 309; Matter of Star Leslie W., 63 N.Y.2d 136, 142; Matter of Sheila G ., 61 N.Y.2d 368, 373; Matter of Peter C., Jr. [Peter C.], 88 AD3dat 703; Matter of Jennifer R., 29 AD3dat 1005–1006; Matter of Justina Rose D., 28 AD3dat 660).

After a dispositional hearing on a petition to terminate parental rights, a court may dismiss the petition, terminate parental rights and commit guardianship to the agency, or suspend judgment for a period of up to one year (see Family Ct Act §§ 631, 633[b] ). “A dispositional order suspending judgment is a dispositional alternative, upon a finding of permanent neglect, that affords ‘a brief grace period designed to prepare the parent to be reunited with the child’ “ (Matter of Jesse D. [John J.D.], 109 AD3d990, 991, quoting Matter of Michael B., 80 N.Y.2d at 311). Although this disposition provides a parent with a “second chance,” it is appropriate only where it is also in the best interests of the children (see Jesse D. [John J.D.], 109 AD3dat 991; Matter of Jalil U. [Rachel L.-U.], 103 AD3d658, 659; see also Matter of Mahaadai D.H. [Rhonda L.H.], 110 AD3d878, 879; Matter of Laelani B., 59 AD3d880, 882). A suspended judgment is not appropriate where a parent has failed to gain insight into the problems which led to the children's removal in the first instance (see Matter of Mahaadai D.H. [Rhonda L.H.], 110 AD3dat 879; Matter of Anthony R. [Juliann A.], 90 AD3d1055, 1057). Moreover, to warrant a suspended judgment, “a parent must demonstrate that progress has been made to overcome the specific problems that led to the removal of the children. Mere attempts are not sufficient” (Matter of Jalil U. [Rachel L.-U.], 103 AD3dat 660; see Matter of Jewels E.R. [Julien R.], 104 AD3d 773, 774).

Here, the Family Court erred in suspending judgment in light of the mother's decision to relocate to Florida after the children were removed from her care and custody, which impeded regular and meaningful visitation, her failure to gain insight into her problems, and her failure to complete services over a period of years (compare Mahaadai D.H. [Rhonda L.H.], 110 AD3dat 880, Matter of Victoria C. [Cassandra C.], 106 AD3d1084, 1085, Matter of Jewels E.R. [Julien R.], 104 AD3dat 773–774, Matter of Megan L.G.H. [Theresa G.H.], 102 AD3d869, 870, Matter of Anthony R. [Juliann A.], 90 AD3dat 1057, and Matter of Lameek L., 226 A.D.2d 464, 465 with Matter of Christopher C., 58 AD3d622, 623–624, and Matter of Society for Seamen's Children v. Jennifer J., 208 A.D.2d 849). The court also failed to adequately consider whether a suspended judgment and potential reunification with the mother would be in the best interests of the children, given the mother's unwillingness to move back to New York to be with the children. The court also failed to consider how the children would be affected by being removed from their foster parent in New York (the paternal aunt, with whom they have lived for approximately four years, substantially all of their lives) and being relocated to Florida, where they have never even visited (see Matter of Jewels E.R. [Julien R.], 104 AD3dat 773; Matter of Kevin L. [Jose L.L.], 102 AD3d695, 696). In light of the mother's failure to acknowledge and address the problems which led to the children's removal in the first instance, and given the adverse effect that removal from the foster parent is likely to have on the children, the court should have terminated the mother's parental rights and freed the children for adoption (see Matter of Mahaadai D.H. [Rhonda L.H.], 110 AD3dat 879; Matter of Jewels E.R. [Julien R.], 104 AD3dat 774; Matter of Jalil U. [Rachel L.-U.], 103 AD3dat 660; Matter of Anthony R. [Juliann A.], 90 AD3dat 1057). In this regard, and contrary to the view of our dissenting colleague, the mother's recent compliance with the minimal requirements of the suspended judgment is not sufficient to warrant an additional inquiry as to whether reunification is a viable goal.

In light of the foregoing, we need not consider the issues raised on the agency's appeal from the order dated June 12, 2013.

I agree with my colleagues that, on the record before us, the Family Court improvidently exercised its discretion in suspending judgment against the mother upon its finding of permanent neglect. Nonetheless, under the very unusual circumstances of this case, I would, upon affirming the finding of permanent neglect, remit the matter for a new dispositional hearing.

Once the Family Court determined that the children were permanently neglected, the sole issue for disposition was the children's best interests (see Family Ct Act § 631; Matter of Hailey ZZ. [Ricky ZZ.], 19 NY3d 422, 429–430; Matter of Star Leslie W., 63 N.Y.2d 136, 147–148; Matter of Christiana M. N.-M. [Alfonso N.], 101 AD3d884, 884). Even though I agree with my colleagues that a suspended judgment was not the appropriate disposition when it was entered, we have received information that, during the pendancy of the appeal, circumstances, and the children's best interests, may have changed. By virtue of the issuance of the suspended judgment, the agency has been constrained to change the permanency goal to reunification. Apparently, during this period, the mother fulfilled the terms of the suspended judgment, which required weekly random drug screening and negative results for all illicit substances, bimonthly visitation with the children via airplane tickets provided by the agency for the mother's travel between New York and Florida, maintenance of regular phone contact with the children, and maintenance of stable housing and source of income. The period of the suspended judgment expired on May 21, 2014.

A year is a significant period of time, especially in the lives of very young children, and what was appropriate a year ago may not be appropriate now (see Matter of Michael B., 80 N.Y.2d 299, 317–318; cf. Matter of Jalil U. [Rachel L–U.], 103 AD3d658, 660–661). In light of the very unusual circumstances of this case and the absence of record information concerning whether termination of this mother's parental rights still is in the best interests of these children, I would remit for a new dispositional hearing (see Matter of Michael B., 80 N.Y.2d at 317–318; Matter of Leval B. v. Kiona E., 115 AD3d665, 667; Matter of Jalil U. [Rachel L.-U.], 103 AD3d at 660–661).

Accordingly, I respectfully dissent in part and would not terminate the mother's parental rights without a new dispositional hearing.

MASTRO, J.P., RIVERA and MILLER, JJ., concur.

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