IN RE: NICHOLAS B. and Jordan B.

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

IN RE: NICHOLAS B. and Jordan B. Erie County Department of Social Services, Petitioner–Respondent; Eleanor J., Respondent–Appellant.

Decided: April 29, 2011

PRESENT:  CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ. Charles J. Greenberg, Buffalo, for Respondent–Appellant. Joseph T. Jarzembek, Buffalo, for Petitioner–Respondent. David C. Schopp, Attorney for the Children, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen Of Counsel), for Nicholas B. and Jordan B.

Respondent mother appeals from an order that, inter alia, terminated her parental rights with respect to the children who are the subject of this proceeding on the ground of permanent neglect.   We note at the outset that the mother's notice of appeal is premature because it was filed prior to the entry of the order from which the appeal is taken (see Matter of Danial R.B. v. Ledyard M., 35 A.D.3d 1232, 827 N.Y.S.2d 799;  Spano v. County of Onondaga, 170 A.D.2d 974, 565 N.Y.S.2d 665, lv. denied 77 N.Y.2d 809, 571 N.Y.S.2d 912, 575 N.E.2d 398, lv. dismissed 77 N.Y.2d 989, 571 N.Y.S.2d 915, 575 N.E.2d 401).   We nevertheless address the merits of the appeal in the exercise of our discretion and in the interest of judicial economy (see CPLR 5520[c];  Danial R.B., 35 A.D.3d 1232, 827 N.Y.S.2d 799;  Spano, 170 A.D.2d 974, 565 N.Y.S.2d 665).

 Contrary to the mother's contention, petitioner established by clear and convincing evidence that it exercised diligent efforts to strengthen the mother's relationship with the children (see generally Matter of Star Leslie W., 63 N.Y.2d 136, 142, 481 N.Y.S.2d 26, 470 N.E.2d 824;  Matter of Thomas JJ., 20 A.D.3d 708, 709–710, 798 N.Y.S.2d 237).   Petitioner further established that, despite those efforts, the mother “failed substantially and continuously or repeatedly to ․ plan for the future of the child[ren] although ․ able to do so” (Star Leslie W., 63 N.Y.2d at 142, 481 N.Y.S.2d 26, 470 N.E.2d 824;  see Thomas JJ., 20 A.D.3d at 710–711, 798 N.Y.S.2d 237).   Although petitioner provided referrals for mental health services and encouraged the mother to maintain a clean home, the mother did not comply with the requirements that she consistently attend mental health counseling and provide a clean home (see Matter of Toyie Fannie J., 77 A.D.3d 449, 908 N.Y.S.2d 673;  Matter of Kyle K., 49 A.D.3d 1333, 1335, 854 N.Y.S.2d 270, lv. denied 10 N.Y.3d 715, 862 N.Y.S.2d 335, 892 N.E.2d 401).   Her failure to satisfy those requirements demonstrates her unwillingness “ ‘to correct the conditions that led to the placement of the children in the custody of petitioner’ ” (Kyle K., 49 A.D.3d at 1335, 854 N.Y.S.2d 270).

 Contrary to the mother's further contention, petitioner established by a preponderance of the evidence that termination of her parental rights was in the children's best interests (see Star Leslie W., 63 N.Y.2d at 147–148, 481 N.Y.S.2d 26, 470 N.E.2d 824).   At the time of the dispositional hearing, the children had been in foster care for approximately six years.   Even after her parental rights were terminated, the mother made little progress in complying with the required mental health services, and her limited progress was not enough to warrant any additional delay in providing the children with a stable home (see Matter of Mikia H., 78 A.D.3d 1575, 911 N.Y.S.2d 554, lv. dismissed in part and denied in part 16 N.Y.3d 760, 919 N.Y.S.2d 111, 944 N.E.2d 648;  Matter of Melissa DD., 45 A.D.3d 1219, 1221, 846 N.Y.S.2d 475, lv. denied 10 N.Y.3d 701, 853 N.Y.S.2d 542, 883 N.E.2d 369).   Moreover, a suspended judgment was not warranted because “there was no evidence that [the mother] had a realistic, feasible plan to care for the children” (Toyie Fannie J., 77 A.D.3d 449, 908 N.Y.S.2d 673).   We have considered the mother's remaining contention and conclude that it does not warrant reversal of the order.

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

MEMORANDUM: