ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES PETITIONER RESPONDENT v. <<

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

ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT;

CAF 10-00103

Decided: February 18, 2011

PRESENT:  CENTRA, J.P., FAHEY, LINDLEY, GREEN, AND MARTOCHE, JJ. ALAN BIRNHOLZ, EAST AMHERST, FOR RESPONDENT-APPELLANT. JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER-RESPONDENT.

MEMORANDUM AND ORDER

IN THE MATTER OF SHIRLEY A.S.

ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,

PETITIONER;

DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL), FOR SHIRLEY A.S.

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

Memorandum:  Respondent mother appeals from an order terminating her parental rights with respect to respondents' child based on a finding of permanent neglect.   Although the mother does not challenge Family Court's finding of permanent neglect, she contends that the court abused its discretion in refusing to grant a suspended judgment.   We reject that contention (see Matter of Elijah D., 74 AD3d 1846;  Matter of Maryline A., 22 AD3d 227).   When the dispositional hearing commenced, the mother was incarcerated in state prison for stealing money in order to purchase drugs.   Although the mother had been released from prison by the last day of the hearing, she was living in a homeless shelter and did not yet have a job or any means to support the child.   In addition, by her own admission, the mother had been addicted to illegal drugs for many years, and the child tested positive for codeine, morphine and opiates at birth.   At the time of the hearing, the mother had not seen the child in 21/212 years.   In contrast, the proposed adoptive parents had been caring for the child since her birth, and she was apparently doing well in their custody.   Under the circumstances, it cannot be said that the court abused its discretion in freeing the child for adoption (see Elijah D., 74 AD3d 1846;  Matter of Roystar T., 72 AD3d 1569, lv denied 15 NY3d 707;  Matter of Samantha Stephanie R., 71 AD3d 484).

Patricia L. Morgan

Clerk of the Court