IN RE: DARREN V. (Anonymous).

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

IN RE: DARREN V. (Anonymous). Orange County Department of Social Services, respondent; Lori W. (Anonymous), et al., appellants.  (Proceeding No. 1) In the Matter of Devan V. (Anonymous). Orange County Department of Social Services, respondent; Lori W. (Anonymous), et al., appellants.  (Proceeding No. 2).

Decided: April 28, 2009

PETER B. SKELOS, J.P., STEVEN W. FISHER, HOWARD MILLER, and RANDALL T. ENG, JJ. Mark Diamond, New York, N.Y., for appellant Lori W. Warren S. Hecht, Forest Hills, N.Y., for appellant Ronald V. David L. Darwin, County Attorney, Goshen, N.Y. (Stephen Toole of counsel), for respondent. Arza Feldman, Uniondale, N.Y., attorney for the children.

In related proceedings pursuant to Social Services Law § 384-b and Family Court Act article 6 to terminate parental rights on the ground of permanent neglect, the mother appeals, and the father separately appeals, from an order of disposition of the Family Court, Orange County (Currier-Woods, J.), dated August 31, 2007, which, after a hearing, revoked a suspended judgment of the same court (Kiedaisch, J.) dated September 13, 2005, as extended by an order of the same court dated April 26, 2006, upon a determination that they violated the terms and conditions thereof, terminated their parental rights, and transferred the custody and guardianship of the subject children to the Orange County Department of Social Services for the purpose of adoption.

ORDERED that the order of disposition is affirmed, without costs or disbursements.

 If a neglectful parent has failed to comply with the terms and conditions of a suspended judgment, the Family Court is permitted to terminate his or her parental rights as long as noncompliance has been demonstrated by a preponderance of the evidence (see Matter of James E., 17 A.D.3d 871, 873-874, 793 N.Y.S.2d 265;  Matter of Jonathan P., 283 A.D.2d 675, 676, 724 N.Y.S.2d 213;  Matter of Kaleb U., 280 A.D.2d 710, 712, 720 N.Y.S.2d 249).   When determining compliance with a suspended judgment, it is the parent's obligation to “demonstrate that progress has been made to overcome the specific problems which led to the removal of the child” (Matter of Jennifer VV., 241 A.D.2d 622, 623, 659 N.Y.S.2d 940;  see Matter of Frederick MM., 23 A.D.3d 951, 953, 805 N.Y.S.2d 160;  Matter of James E., 17 A.D.3d at 874, 793 N.Y.S.2d 265).   Significantly, “[a] parent's attempt to comply with the literal provisions of the suspended judgment is not enough” (Matter of Jennifer VV., 241 A.D.2d at 623, 659 N.Y.S.2d 940).   Moreover, compliance with the terms of a suspended judgment may, but does not necessarily, lead to dismissal of the termination petition (see Matter of Michael B., 80 N.Y.2d 299, 311, 590 N.Y.S.2d 60, 604 N.E.2d 122;  Matter of Jonathan B., 5 A.D.3d 477, 479, 772 N.Y.S.2d 569;  Matter of Saboor C., 303 A.D.2d 1022, 1023, 757 N.Y.S.2d 192).

 Here, while the appellants made some efforts to comply with the conditions of the suspended judgment, the Family Court properly determined that they failed to show the required progress in certain problem areas (see Matter of Michael B., 80 N.Y.2d at 311, 590 N.Y.S.2d 60, 604 N.E.2d 122;  Matter of Jennifer VV., 241 A.D.2d at 623, 659 N.Y.S.2d 940;  Matter of Frederick MM., 23 A.D.3d at 953, 805 N.Y.S.2d 160;  Matter of James E., 17 A.D.3d at 874, 793 N.Y.S.2d 265).   Specifically, the Family Court correctly determined that the appellants' failure to attend four of six possible visits during a six-week period constituted a violation of one of the terms of the suspended judgment, which required them to attend “90% of all scheduled visitation” during the period of the suspended judgment.   Further, the evidence also demonstrated that the parents failed to attend the majority of school and doctor appointments pertaining to the subject children.

Based on the foregoing, the appellants failed to demonstrate that progress had been made to overcome one of the specific problems which led to the removal of the subject children, that is, their failure to maintain contact with the children so as to demonstrate their ability to take full responsibility as the children's primary caretakers (see Matter of Jennifer VV., 241 A.D.2d at 623, 659 N.Y.S.2d 940;  Matter of Kenneth A., 206 A.D.2d 602, 604, 614 N.Y.S.2d 472).   The evidence presented at the violation hearing demonstrated by a preponderance of the evidence that the appellants failed to satisfy certain conditions of the suspended judgment (see Matter of Carolyn F., 55 A.D.3d 832, 866 N.Y.S.2d 298;  Matter of Aaron S., 15 A.D.3d 585, 586, 790 N.Y.S.2d 208).   Accordingly, revocation of the suspended judgment was warranted (see Matter of Michael C., 4 A.D.3d 423, 424, 771 N.Y.S.2d 397;  Matter of Francisco Anthony C.F., 305 A.D.2d 410, 758 N.Y.S.2d 501;  Matter of Judith D., 307 A.D.2d 311, 762 N.Y.S.2d 813).

 We reject the appellants' contention that the Family Court failed to conduct a dispositional hearing since “a hearing on a petition alleging the violation of a suspended judgment is part of the dispositional phase of a permanent neglect proceeding” (Matter of Saboor C., 303 A.D.2d at 1023, 757 N.Y.S.2d 192;  see Matter of Seandell L., 57 A.D.3d 1511, 870 N.Y.S.2d 662).   Thus, the Family Court may enforce a suspended judgment without the need for a separate dispositional hearing, particularly where, as here, the court has presided over prior proceedings from which it became acquainted with the parties, and the record shows that the court was aware of and considered the children's best interests (see Matter of Christyn Ann D., 26 A.D.3d 491, 493, 811 N.Y.S.2d 94;  Matter of Seandell L., 57 A.D.3d at 1511, 870 N.Y.S.2d 662;  Matter of Jordan Amir B., 15 A.D.3d 477, 479, 790 N.Y.S.2d 507).   In freeing the children for adoption, the Family Court properly considered the best interests of Darren V. and Devan V., born in 2002 and 2003, respectively, including that they have spent all or substantially all of their lives in foster care, and the appellants have not demonstrated their ability to ameliorate the problems that led to their placement (see Matter of Daevon Lamar P., 48 A.D.3d 469, 470, 849 N.Y.S.2d 806;  Matter of Jennifer R., 29 A.D.3d 1005, 1007, 817 N.Y.S.2d 309;  Matter of Kianna Maria L., 26 A.D.3d 166, 167, 808 N.Y.S.2d 677).   Thus, the evidence supports the further determination of the Family Court that termination of the appellants' parental rights is in the children's best interests (see Family Ct. Act § 631;  Social Services Law § 384-b[1] [b];  Matter of Star Leslie W., 63 N.Y.2d 136, 147-148, 481 N.Y.S.2d 26, 470 N.E.2d 824;  Matter of Joshua T., 25 A.D.3d 806, 807, 807 N.Y.S.2d 580;  Matter of Carlos D., 24 A.D.3d 1263, 805 N.Y.S.2d 887;  Matter of Aaron S., 15 A.D.3d 585, 586, 790 N.Y.S.2d 208;  see also Matter of Michael C., 4 A.D.3d 423, 424, 771 N.Y.S.2d 397).

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