IN RE: RICHELIS S.

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IN RE: RICHELIS S. Erie County Department of Social Services, Petitioner-Respondent; Richard S., Respondent-Respondent. Charles D. Halvorsen, Esq., Attorney for the Child, Appellant.

Decided: December 30, 2009

PRESENT: SMITH, J.P., FAHEY, CARNI, PINE, AND GORSKI, JJ. David C. Schopp, Attorney for the Child, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel), Appellant Pro Se. Joseph T. Jarzembek, Buffalo, for Petitioner-Respondent. Thomas R. Lochner, Williamsville, for Respondent-Respondent.

In this proceeding, the attorney for the child appeals from an order that dismissed the petition seeking revocation of a suspended judgment and termination of the parental rights of respondent father with respect to the subject child. We agree with the attorney for the child and petitioner, Erie County Department of Social Services (DSS), that Family Court erred in dismissing the petition and should have freed the child for adoption. We note at the outset that the father contends that the petition was properly dismissed because DSS failed to comply with 22 NYCRR 205.50(d)(1) and thus that the court did not acquire personal jurisdiction over him. Indeed, the father is correct that DSS should have filed a motion or an order to show cause rather than a summons with notice and petition. The father raised that contention for the first time in a post-hearing memorandum of law and thus waived it, inasmuch as he already had participated in the proceedings (see generally Matter of El-Sheemy v. El-Sheemy, 35 A.D.3d 738, 826 N.Y.S.2d 695). In any event, any error is harmless because the father received the requisite notice.

Turning to the merits, we conclude that DSS established by a preponderance of the evidence that the father violated the conditions of the suspended judgment (see Matter of Seandell L., 57 A.D.3d 1511, 870 N.Y.S.2d 662, lv denied 12 N.Y.3d 708, 879 N.Y.S.2d 55, 906 N.E.2d 1089; Matter of Amber AA., 301 A.D.2d 694, 696, 754 N.Y.S.2d 387). The record establishes that the father did not contact the psychologist with whom he was directed to meet for three months and failed to secure housing sufficient to promote and maintain a healthy environment for the child. Moreover, the father could not recall what type of special educational services or treatment the child received, and he did not know the nature of the disability for which the child was receiving treatment.

We further conclude that the court should have terminated the father's parental rights and freed the child for adoption. The hearing on the issue whether the father violated the terms of the suspended judgment “ ‘was part of the dispositional phase of this [permanent neglect] proceeding’ “ (Matter of Robert T., 270 A.D.2d 961, 961, 704 N.Y.S.2d 436, lv denied 95 N.Y.2d 758, 713 N.Y.S.2d 2, 734 N.E.2d 1213), and “ ‘the order of disposition shall be made ․ solely on the basis of the best interests of the child’ “ (Matter of Saboor C., 303 A.D.2d 1022, 1023, 757 N.Y.S.2d 192, quoting Family Ct Act § 631). Here, although the court did not revoke the suspended judgment and thus did not engage in a best interests analysis, the record is sufficient for this Court to determine the best interests of the child (see Matter of Brian C., 32 A.D.3d 1224, 1225, 821 N.Y.S.2d 712, lv denied 7 N.Y.3d 717, 827 N.Y.S.2d 688, 860 N.E.2d 990). “In the exercise of our independent power of factual review” (id.), we find that the evidence at the hearing established that terminating the father's parental rights and freeing the child for adoption is in the child's best interests (see Matter of Lionel Burton W., 30 A.D.3d 355, 818 N.Y.S.2d 72). The evidence at the hearing established that attempts to reunite the child with the father resulted in psychological trauma to the child. Moreover, a court-appointed special advocate who observed the child failed to see any signs of affection between the father and the child, and strongly opposed reunification. Consequently, we agree with the attorney for the child that the court erred in dismissing the petition seeking to revoke the suspended judgment and to terminate the father's parental rights, and should have found that terminating the father's parental rights and freeing the child for adoption is in the child's best interests (see generally Matter of Christopher J., 60 A.D.3d 1402, 876 N.Y.S.2d 275; Matter of Seandell L., 57 A.D.3d 1511, 870 N.Y.S.2d 662, lv denied 12 N.Y.3d 708, 879 N.Y.S.2d 55, 906 N.E.2d 1089; Matter of Michael D.H., 56 A.D.3d 1269, 869 N.Y.S.2d 298).

It is hereby ORDERED that the order so appealed from is reversed on the law and facts without costs, the petition is granted, the guardianship and custody of the child are committed to petitioner and the matter is remitted to Family Court, Erie County, for the initial freed child permanency hearing to be commenced within 30 days of the date of entry of the order of this Court.

We respectfully dissent inasmuch as we disagree with our colleagues that petitioner, Erie County Department of Social Services (DSS), established by a preponderance of the evidence that respondent father violated the conditions of the suspended judgment. We therefore would affirm the order. Pursuant to the terms of the suspended judgment, the father was required to “obtain and maintain adequate housing in preparation for the child to be returned home.” A permanency planner for DSS testified that the father's residence “was an appropriate home,” and Family Court in turn determined that the father had “secured a stable home environment for his family,” including the child who is the subject of this proceeding. The court, with its direct access to the parties, was in the best position to evaluate their testimony, character and sincerity, and thus the court's determination is entitled to great deference (see Matter of Christyn Ann D., 26 A.D.3d 491, 492-493, 811 N.Y.S.2d 94). Here, the court determined that the bond of the child with her foster mother was the result of “[DSS] and [its] subcontracted agency not encouraging or sustaining the bond between [the father] and his daughter.” Under these circumstances, we agree with the court that the diminished bond between the father and the child does not provide a basis to determine that it is in the best interests of the child to terminate the father's parental rights. The Court of Appeals has strongly cautioned against comparing a child's emotional ties that naturally develop with a foster parent to the emotional ties between a child and his or her biological parent (see Matter of Michael B., 80 N.Y.2d 299, 313, 590 N.Y.S.2d 60, 604 N.E.2d 122). Stated another way, “[t]o use the period during which a child lives with a foster family, and emotional ties that naturally eventuate, as a ground for comparing the biological parent with the foster parent undermines the very objective of voluntary foster care as a resource for parents in temporary crisis, who are then at risk of losing their children once a bond arises with the foster families” (id.). In our view, the majority's determination is founded upon that which the Court of Appeals has cautioned against.

MEMORANDUM: