Rachel W., Respondent-Appellant. v. <<

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

Matter of TERRY L.G. Erie County Department of Social Services, Petitioner-Respondent; Rachel W., Respondent-Appellant.

Decided: April 30, 2004

PRESENT:  PIGOTT, JR., P.J., GREEN, WISNER, SCUDDER, AND GORSKI, JJ. David J. Pajak, Williamsville, for Respondent-Appellant. David C. Schopp, Law Guardian, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel), for Terry L.G.

In a proceeding pursuant to Social Services Law § 384-b to terminate parental rights, respondent mother appeals from an order revoking the suspended judgment after a hearing and terminating her parental rights upon a finding that she violated its terms and conditions.   A suspended judgment provides parents who have been found to have permanently neglected their children with a brief grace period of up to one year within which to prepare themselves to be reunited with their children (see Matter of Michael B., 80 N.Y.2d 299, 311, 590 N.Y.S.2d 60, 604 N.E.2d 122).   During that period, the parents must comply with the terms and conditions set forth in the judgment that are designed to ameliorate their acts (see 22 NYCRR 205.50[a] ).   Where there is noncompliance with the conditions of a suspended judgment, Family Court may revoke the suspended judgment and terminate parental rights, provided that the parents' noncompliance is established by a preponderance of the evidence (see Michael B., 80 N.Y.2d at 311, 590 N.Y.S.2d 60, 604 N.E.2d 122;  Matter of Jennifer T., 224 A.D.2d 843, 843-844, 638 N.Y.S.2d 219;   Matter of Grace Q., 200 A.D.2d 894, 895, 607 N.Y.S.2d 457).

The evidence adduced at the hearing established that, contrary to the condition in the suspended judgment, respondent did not establish stable housing from the outset but, rather, moved three times.   Respondent initially moved from Buffalo to Rochester, then returned to Buffalo and lived with her mother, and did not acquire stable housing until less than two months prior to the hearing.   The fact that she eventually did secure stable housing does not constitute compliance with the terms of the suspended judgment.   Moreover, respondent became pregnant again during the period of the suspended judgment and admitted to smoking marihuana “on one occasion” during the pregnancy.   The court did not find respondent credible or sincere.   The court is in a unique position to observe the witnesses and determine their credibility and its determinations are entitled to great deference where, as here, those determinations are supported by the record (see Matter of Angelina AA., 211 A.D.2d 951, 952, 622 N.Y.S.2d 336, lv. denied 85 N.Y.2d 808, 628 N.Y.S.2d 51, 651 N.E.2d 919).   Thus, we conclude that the court properly terminated respondent's parental rights (see Matter of Orange County Dept. of Social Servs. v. Lisa Sue C., 220 A.D.2d 511, 632 N.Y.S.2d 197).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: