In the Matter of BRYCE Q., a Neglected Child. FRANKLIN COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; BRANDY R., Appellant.
Calendar Date: May 1, 2017
A. Burgess, Indian Lake, for appellant.
E. LaPlant, Franklin County Department of Social Services,
Malone, for respondent.
Maxwell, Plattsburgh, attorney for the child.
Before: McCarthy, J.P., Rose, Devine, Clark and Mulvey, JJ.
MEMORANDUM AND ORDER
from an order of the Family Court of Franklin County (Main
Jr., J.), entered March 23, 2016, which, in a proceeding
pursuant to Family Ct Act article 10, denied respondent's
motion to delay a prior sentence of incarceration.
child was adjudicated to be neglected and, in February 2014,
Family Court issued a dispositional order that placed
respondent under the supervision of petitioner. The terms of
supervision required respondent to comply with various terms
and conditions that included refraining from consuming
alcohol, marihuana and other illegal or unprescribed
substances, as well as meaningfully participating in and
completing recommended mental health services.
commenced this proceeding three months later, alleging that
respondent had willfully violated the dispositional order by
consuming forbidden substances and missing appointments with
her therapist. Respondent appeared before Family Court and
admitted to willfully violating the dispositional order,
resulting in an August 2014 consent order in which she was
sentenced to 90 days in jail and directed to report to the
jail by a specified date. Family Court made clear that it
would consider delaying the report date if respondent
complied with the terms and conditions of her supervision
series of modified orders of commitment followed that
adjourned the report date but, as 2015 dawned, respondent
tested positive for various substances and was held on a
probation violation petition. Respondent was eventually found
to have violated her probation and sentenced to a term of
imprisonment, prompting Family Court to issue an order in
July 2015 directing that she begin serving the jail sentence
"immediately upon her release from [state prison]
unless" other relief was sought by motion. Respondent
moved for a further delay in the report date as her release
from prison loomed, with her attorney representing that
respondent had made productive use of her time in prison by
completing an alcohol and substance abuse treatment program
and obtaining her high school equivalency diploma. Following
an appearance on the motion, Family Court issued an order in
March 2016 deeming the jail sentence satisfied upon receipt
of proof that respondent had completed the treatment program
and obtained her diploma, as well as a copy of the terms of
her parole supervision. Respondent failed to provide the
demanded proof, and instead appeals from that order.
did not appeal from any order save that entered in March
2016, an order that did nothing beyond deeming a previously
imposed jail sentence to be satisfied if certain
documentation was provided, and her contentions
"relating to th[e] prior orders are not properly before
us" (Matter of Isaiah M. [Nicole M.], 144
A.D.3d 1450, 1452 , lv dismissed 28 N.Y.3d
1129 ; see Matter of Bonneau v Bonneau, 97
A.D.3d 917, 918 , lv denied 19 N.Y.3d 815');">19 N.Y.3d 815
). As for the March 2016 order itself, respondent did
not provide Family Court with the required proof of her high
school equivalency diploma and, notably, fails to represent
on appeal that she actually obtained one. In light of
respondent's numerous wasted opportunities to come into
compliance with the supervision imposed by the dispositional
order, as well as her inability to document her touted
progress, we perceive the March 2016 order to be
"eminently fair and reasonable" (Matter of
Duquette v Ducatte, 102 A.D.2d 904, 904 ).
McCarthy, J.P., Rose and Mulvey, JJ., concur.
Family Court did not obtain respondent's consent to the
conditions imposed upon her in the March 2016 order, and
because Family Court's practice of suspending ...