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In re Breana R. S. (Anonymous)

Supreme Court of New York, Second Department

March 29, 2017

In the Matter of Breana R. S. (Anonymous), nonparty-appellant. Catholic Guardian Services, petitioner-respondent; Triana B.-S. (anonymous), respondent-appellant, et al., respondent. Docket No. B-1163-11

          Seymour W. James, Jr., New York, NY (Tamara A. Steckler and Judith Stern of counsel), for nonparty-appellant.

          Steven P. Forbes, Jamaica, NY, for respondent-appellant.

          Magovern & Sclafani, Mineola, NY (Mary Jane Sclafani and Joanna M. Roberson of counsel), for petitioner-respondent.

          MARK C. DILLON, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, ROBERT J. MILLER, JJ.

          DECISION & ORDER

         Appeal by the mother and separate appeal by the child from an order of the Family Court, Kings County (Barbara Salinitro, J.), dated January 7, 2016. The order, after a hearing, in effect, revoked an order of suspended judgment of that court dated July 29, 2013, with respect to the mother, and terminated the mother's parental rights to the subject child.

         ORDERED that the order dated January 7, 2016, is affirmed, without costs or disbursements.

         The petitioner commenced this proceeding to terminate the mother's parental rights on the ground that she had permanently neglected the subject child. The mother admitted that she permanently neglected the child by failing to visit her for a continuous six-month period, and the Family Court entered an order of suspended judgment dated July 29, 2013. The petitioner subsequently filed a petition alleging that the mother had violated the terms of the order of suspended judgment. Following a hearing, the court found that the mother had failed to comply with the terms of the order of suspended judgment and, in effect, revoked the order of suspended judgment as to the mother and terminated the mother's parental rights. Both the mother and the child appeal.

         "The Family Court may revoke a suspended judgment after a violation hearing if it finds, upon a preponderance of the evidence, that the parent failed to comply with one or more of the conditions of the suspended judgment" (Matter of Hypnotic L.D. [Alexa R.N.], 145 A.D.3d 720, 721; see Matter of Derrick D.A. [Shavonna L.L.D.], 134 A.D.3d 928, 928; Matter of Phoenix D.A. [Jessie A.], 123 A.D.3d 823, 824). "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. A parent's attempt to comply with the literal provisions of the suspended judgment is not enough" (Matter of Selena L. [Susan B.L.], 140 A.D.3d 769, 770). "The credibility findings of the Family Court should be accorded great deference, as it had direct access to the parties and was in the best position to evaluate their testimony, character, and sincerity" (Matter of Derrick D.A. [Shavonna L.L.D.], 134 A.D.3d at 928). Here, the court properly found, by a preponderance of the evidence, that the mother failed to comply with the terms of the order of suspended judgment requiring her to attend and complete a substance abuse treatment program and attend scheduled visits with the child (see Matter of Hypnotic L.D. [Alexa R.N.], 145 A.D.3d 720; Matter of Kimble G., II [Kimble G.], 108 A.D.3d 534; Matter of Carmen C. [Margarita N.], 95 A.D.3d 1006; see also Matter of Gianna W. [Jessica S.], 96 A.D.3d 545).

         Moreover, under the circumstances of this case, the Family Court providently exercised its discretion in determining that a separate dispositional hearing was not required before, in effect, revoking the order of suspended judgment as to the mother and terminating the mother's parental rights. The Family Court may enforce a suspended judgment without the need for a separate dispositional hearing where "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 child's best interests" (Matter of Kai G. [Janice K.], 126 A.D.3d 902, 903; see Matter of Hypnotic L.D. [Alexa R.N.], 145 A.D.3d 720; Matter of Darren V., 61 A.D.3d 986). Here, the court conducted a full fact-finding hearing on the violation petition, as well as a permanency hearing, and the record shows that it was aware of and considered the child's best interests (see Matter of Jeremiah J.W. [Tionna W.], 134 A.D.3d 848; Matter of Carmen C. [Margarita N.], 95 A.D.3d 1006).

         Viewed in totality, the record demonstrates that the mother was afforded the effective assistance of counsel (see Family Ct Act § 262[a][i]; People v Baldi, 54 ...


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