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In re Bryce Q.

Supreme Court of New York, Third Department

July 13, 2017

In the Matter of BRYCE Q., a Neglected Child. FRANKLIN COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; BRANDY R., Appellant.

          Calendar Date: May 1, 2017

          Lisa A. Burgess, Indian Lake, for appellant.

          David E. LaPlant, Franklin County Department of Social Services, Malone, for respondent.

          Cheryl Maxwell, Plattsburgh, attorney for the child.

          Before: McCarthy, J.P., Rose, Devine, Clark and Mulvey, JJ.

          MEMORANDUM AND ORDER

          Devine, J.

         Appeal 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.

         Respondent's 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.

         Petitioner 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 going forward.

         A 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. [1]

         Respondent 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 [2016], lv dismissed 28 N.Y.3d 1129 [2017]; see Matter of Bonneau v Bonneau, 97 A.D.3d 917, 918 [2012], lv denied 19 N.Y.3d 815');">19 N.Y.3d 815 [2012]). 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 [1984]).

          McCarthy, J.P., Rose and Mulvey, JJ., concur.

          Clark, J. (dissenting).

         Because 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 ...


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