Matter of Alexsander N. , 45 N.Y.S.3d 253 ( 2017 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 5, 2017 522217
________________________________
In the Matter of ALEXSANDER N.,
a Permanently Neglected
Child.
ALBANY COUNTY DEPARTMENT FOR
CHILDREN, YOUTH AND MEMORANDUM AND ORDER
FAMILIES,
Respondent;
LENA N.,
Appellant.
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Calendar Date: November 22, 2016
Before: Garry, J.P., Egan Jr., Rose, Clark and Mulvey, JJ.
__________
Sandra M. Colatosti, Albany, for appellant.
Daniel Lynch, County Attorney, Albany (Heather L. Davis of
counsel), for respondent.
Carol R. Stiglmeier, Albany, attorney for the child.
__________
Mulvey, J.
Appeal from an order of the Family Court of Albany County
(Kushner, J.), entered November 2, 2015, which, among other
things, in a proceeding pursuant to Social Services Law § 384-b,
granted petitioner's application to revoke a suspended judgment,
and terminated respondent's parental rights.
Respondent is the mother of a son (born in 2010). In
August 2014, petitioner filed a permanent neglect proceeding
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seeking to terminate respondent's parental rights, claiming,
among other things, that respondent failed to plan for the future
of the child, had on several occasions acted aggressively and
lashed out at service providers and failed to consistently
participate in mental health treatment. At the ensuing hearing,
respondent admitted to such conduct, and Family Court issued an
order adjudicating the child to be permanently neglected.
Judgment was suspended for eight months upon certain terms and
conditions. Petitioner thereafter filed this petition claiming,
among other things, that respondent violated the suspended
judgment by failing to cooperate with petitioner in that she
failed to notify it that she had been arrested, charged with
petit larceny and remanded to the local jail. This resulted in
her being unable to attend required meetings, service programs,
visits with the child and her own mental health appointments.
After a hearing on the petition, Family Court revoked the
suspended judgment, terminated respondent's parental rights and
transferred guardianship and custody of the child to petitioner.
Respondent appeals. We affirm.
"The purpose of a suspended judgment is to allow a parent
who has permanently neglected his or her child a brief grace
period to complete the goals necessary for reunification to
occur" (Matter of Jason H. [Lisa K.], 118 AD3d 1066, 1067 [2014]
[internal quotation marks and citations omitted]). This
opportunity is limited in time during which the parent "must
comply with terms and conditions meant to ameliorate the
difficulty" which led to the suspended judgment (Matter of
Michael B., 80 NY2d 299, 311 [1992]; accord Matter of Jason H.
[Lisa K.], 118 AD3d at 1067; Matter of Clifton ZZ. [Latrice ZZ.],
75 AD3d 683, 684 [2010]), and "if a preponderance of the evidence
establishes the parent's noncompliance, Family Court may revoke
the judgment and terminate that party's parental rights" (Matter
of Jason H. [Lisa K.], 118 AD3d at 1067; see Matter of Clifton
ZZ. [Latrice ZZ.], 75 AD3d at 684).
The suspended judgment required respondent, among other
things, to cooperate with petitioner, attend all service plan
reviews and meetings regarding the child and provide notice if
she was unable to attend such meetings. She was also required to
attend all of her mental health and psychiatric appointments and
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follow any recommendations, including taking all medications as
prescribed, attend all parental visits with the child and attend
and comply with other programs designed to help build her
parenting skills. Family Court heard testimony from respondent,
caseworkers, social workers and mental health professionals that
detailed respondent's violations of the terms and conditions of
the suspended judgment. Our review of the record confirms that
respondent failed to comply with the terms of her suspended
judgment in numerous aspects.
In contravention of the terms and conditions of the
suspended judgment, respondent failed to cooperate with
petitioner, consistently refusing to follow recommendations with
respect to how to handle visitations with the child, including
feeding him healthy snacks, staying away from places that might
cause him distress and creating a suitable and safe home
environment. Furthermore, respondent instructed the child to
disobey a social worker and run away from the worker. Further,
two specific instances demonstrate the unlikelihood of respondent
ever being able to be reunited with the child. Shortly after the
suspended judgment was entered, respondent was scheduled for a
supervised holiday visit with the child. Respondent requested
that the visit take place at a buffet-style restaurant. She was
advised against that location since it would be too stimulating
for the child due to the child's diagnosed behavioral disorders.
Nevertheless, respondent persisted with her demand and the
supervised visit was scheduled with two social workers.
Testimony revealed that, despite being cautioned against giving
sugary foods to the child due to his diagnosis, respondent was
observed taking the child through the buffet dessert line and
taking cake from the dessert table, stuffing it into the child's
mouth and replacing the uneaten portion back on the table. This
inappropriate behavior occurred with other desserts. Shortly
thereafter, the child became disruptive and, when respondent was
unable to control him, one of the social workers had to remove
the child from the restaurant; when the social worker was unable
to calm him down, the visit ended. The other instance involved
respondent's arrest and incarceration. Respondent failed to
notify petitioner of her arrest and remand to the local jail,
which resulted in respondent missing numerous mental health
appointments as well as other appointments for both herself and
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the child, negatively affecting the child's behavior.
Respondent's mental health provider testified that respondent's
mental health issues will last indefinitely, and, as such, she
"had a pervasive need for ongoing support." Testimony shows
respondent's lack of commitment to her continuing need for mental
health counseling and treatment that are essential to address the
problems that led to the finding of permanent neglect (see Matter
of Hazel OO. [Roseanne OO.], 133 AD3d 1126, 128 [2015]; Matter of
Marquise JJ. [Brithany JJ.], 103 AD3d 937, 939 [2013], lv denied
21 NY3d 859 [2013]).
Given this evidence, we find that Family Court's
determination to revoke the suspended judgment has a sound and
substantial basis in the record and that termination of
respondent's parental rights is in the child's best interests
(see Matter of Dominique VV. [Kelly VV.], ___ AD3d ___, ___, 2016
NY Slip Op 08132, *2 [2016]; Matter of Marquise JJ. [Brithany
JJ.], 103 AD3d at 938-939; Matter of Clifton ZZ. [Latrice ZZ.],
75 AD3d at 684). As such, we decline to disturb Family Court's
determination.
Garry, J.P., Egan Jr., Rose and Clark, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court