IN RE: SHILLOH M.J. (2020)

Orders, Family Court, Bronx County (Elenor C. Reid, J.), entered on or about January 17, 2019, which, inter alia, upon findings that respondent mother permanently neglected the subject children, terminated respondent's parental rights to the children and committed custody and guardianship of the children to petitioner agency and the Administration for Children's Services for the purpose of adoption, unanimously modified, on the facts, to vacate the order that terminated respondent's parental rights to the child Cobey and freed him for adoption, and the matter remanded to Family Court for a new dispositional hearing regarding the best interests of Cobey, and otherwise affirmed, without costs.

The agency demonstrated by clear and convincing evidence that it made diligent efforts to encourage and strengthen the parental relationship, and notwithstanding these efforts, the mother permanently neglected the children by failing to plan for their future (see Social Services Law § 384–b[7][a];  Matter of Sheila G., 61 N.Y.2d 368, 373, 474 N.Y.S.2d 421, 462 N.E.2d 1139 [1984] ).  The evidence shows that the agency developed a plan tailored to respondent's needs by, among other things, referring her for a mental health evaluation and drug treatment program, scheduling regular supervised visitation with the children, and meeting with her to review the service plan and discuss the importance of compliance (see e.g. Matter of Nahzzear Y.G. [Tanisha N.], 172 A.D.3d 526, 98 N.Y.S.3d 433 [1st Dept. 2019], lv denied 33 N.Y.3d 1113, 106 N.Y.S.3d 705, 130 N.E.3d 1315 [2019] ).  Despite these diligent efforts, respondent was uncooperative, as she refused to follow up on the multiple referrals for required services and to permit agency visits to her home.  She also did not provide documentation verifying her participation in mental health services pursued on her own, or sign consent forms so that the agency could confirm with the provider directly (see Matter of Angelica D. [Deborah D.], 157 A.D.3d 587, 588, 69 N.Y.S.3d 312 [1st Dept. 2018] ).

The finding that termination of respondent's parental rights is in the children's best interests is supported by a preponderance of the evidence (Matter of Star Leslie W., 63 N.Y.2d 136, 147–148, 481 N.Y.S.2d 26, 470 N.E.2d 824 [1984] ).  The record shows that the children have been in the same pre-adoptive stable foster home since 2013, where they are well cared for and their needs are met.  As there is no evidence that any additional delay would alter the situation, a suspended judgment is not warranted (see Matter of Alexandria D. [Brenda D.], 136 A.D.3d 604, 26 N.Y.S.3d 270 [1st Dept. 2016] ).

Although the record supports the court's determination that adoption by the foster parents is in the children's best interests, we remand the matter for a new dispositional hearing with respect to Cobey.  His attorney has advised that he is no longer in the same pre-adoptive home, is now 16 years old, and does not consent to being adopted (see Matter of Eugene L., 22 A.D.3d 348, 348–349, 802 N.Y.S.2d 156 [1st Dept. 2005], lv denied 6 N.Y.3d 715, 823 N.Y.S.2d 355, 856 N.E.2d 919 [2006] ).