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Donovan W. v. Lynn W.

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


November 21, 2008

IN THE MATTER OF DONOVAN W. ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT;
v.
LYNN W., RESPONDENT-APPELLANT.

Appeal from an order of the Family Court, Erie County (Margaret O. Szczur, J.), entered September 20, 2007 in a proceeding pursuant to Social Services Law § 384-b. The order, among other things, terminated respondent's parental rights.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SCUDDER, P.J., MARTOCHE, SMITH, PERADOTTO, AND PINE, JJ.

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

Memorandum

On appeal from an order of disposition that, inter alia, terminated her parental rights with respect to her child and freed him for adoption, respondent mother contends that Family Court abused its discretion in terminating her parental rights rather than issuing a suspended judgment. We reject that contention. Petitioner established at the dispositional hearing that, over the course of more than four years, the child had been removed from foster care and returned to his mother's care numerous times but had been returned to foster care because the mother had repeatedly relapsed after completing rehabilitation programs (see generally Matter of Joyce T., 65 NY2d 39, 47-48). Petitioner further established that, at the time of the dispositional hearing, the child was thriving with his foster mother and that the foster mother wished to adopt him (see Matter of Lenny R., 22 AD3d 240, lv denied 6 NY3d 708; Matter of Philip D., 266 AD2d 909). We thus conclude that the court properly determined that a suspended judgment would not be in the best interests of the child (see Matter of Ada M.R., 306 AD2d 920, 921, lv denied 100 NY2d 509; see generally Matter of Michael B., 80 NY2d 299, 310-311). Under the circumstances of this case, any "progress made by [the mother] in the months preceding the dispositional determination was not sufficient to warrant any further prolongation of the child's unsettled familial status" (Matter of Maryline A., 22 AD3d 227, 228).

20081121

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