Little Flower Children & Family Servs. of N.Y. v. Lissette N.C. (In re Davon K.W.)

• Decision Date: 07 October 2020
• Docket Number: 2019–06500,2019–06503,Docket Nos. B–6610–17, B–6611–17
• Citation: 187 A.D.3d 766,131 N.Y.S.3d 393
• Parties: In the MATTER OF DAVON K.W. (Anonymous). Little Flower Children and Family Services of New York, petitioner-respondent; v. Lissette N.C. (Anonymous), appellant, et al., respondent. (Proceeding No. 1) In the Matter of Sariah L.R. (Anonymous). Little Flower Children and Family Services of New York, petitioner-respondent; v. Lissette N.C. (Anonymous), appellant, et al., respondent. (Proceeding No. 2)
• Court: New York Supreme Court — Appellate Division

187 A.D.3d 766

131 N.Y.S.3d 393

In the MATTER OF DAVON K.W. (Anonymous).

Little Flower Children and Family Services of New York, petitioner-respondent;

v.Lissette N.C. (Anonymous), appellant, et al., respondent.

(Proceeding No. 1)

In the Matter of Sariah L.R. (Anonymous).

Little Flower Children and Family Services of New York, petitioner-respondent;

v.Lissette N.C. (Anonymous), appellant, et al., respondent.

(Proceeding No. 2)

2019–06500

2019–06503

Docket Nos. B–6610–17, B–6611–17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—September 14, 2020

October 7, 2020

Robin Stone Einbinder, Jamaica, NY, for appellant.

Carrieri & Carrieri, P.C., St. James, N.Y. (Ralph R. Carrieri of counsel), for petitioner—respondent.

Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and John A. Newbery of counsel), attorney for the children.

RUTH C. BALKIN, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In related proceedings pursuant to Social Services Law § 384–b, the mother appeals from two orders of fact-finding and disposition of the Family Court, Queens County (Joan L. Piccirillo, J.) (one as to each child), each dated May 22, 2019. The orders of fact-finding and disposition, insofar as appealed from, after fact-finding and dispositional hearings, found that the mother permanently neglected the subject children, terminated the mother's parental rights, and transferred guardianship and custody of the children to the petitioner and the Commissioner of Social Services of the City of New York for the purpose of adoption.

ORDERED that the orders of fact-finding and disposition are affirmed, without costs or disbursements.

The petitioner commenced these related proceedings pursuant to Social Services Law § 384–b to terminate parental rights on the ground of permanent neglect. Among other things, the petitions allege that despite the petitioner's efforts to strengthen the mother's parental relationship with the children, the mother failed to consistently visit with the children, and, in effect, failed to consistently engage or complete her service plan. Following a fact-finding hearing and a subsequent dispositional hearing, the Family Court terminated the mother's parental rights and freed the children for adoption. The mother contends that the court, rather than terminating her parental rights, should have granted her request for a suspended judgment.

At the dispositional stage of a proceeding to terminate parental rights, the court focuses solely on the best interests of the children (see Family Ct Act § 631 ; Matter of Star Leslie W., 63 N.Y.2d 136, 147, 481 N.Y.S.2d 26, 470 N.E.2d 824 ). There is no presumption that those interests will be served best by a return to the biological parent (see Family Ct Act § 631 ; Matter of Star Leslie W., 63 N.Y.2d at 147–148, 481 N.Y.S.2d 26, 470 N.E.2d 824 ). The court may: (1) dismiss the petition if the allegations are not established; (2) suspend judgment for up to one year; or (3) terminate parental rights, freeing the child for adoption (see Family Ct Act §§ 631, 633[b] ; Social Services Law § 384–b[8][f] ). "Since custody determinations turn in large part on assessments of the credibility, character, temperament and sincerity of the parties, the Family Court's determination should not be disturbed unless it lacks a sound and substantial basis in the record" (Matter of Jade D.S.M.A.S. [Sakina S.O.A.S], 140 A.D.3d 1077, 1077, 34 N.Y.S.3d 480 [internal quotation marks omitted]; see Matter of Jason A. [Maritza L.G.], 177 A.D.3d 968, 969, 111 N.Y.S.3d 197 ).

A dispositional order suspending judgment provides a brief grace period to give a parent found to have engaged in conduct justifying terminating his or her parental rights a second chance to prepare for reunification with the children (see Family Ct Act § 633 ; Matter of Michael B., 80 N.Y.2d 299, 311, 590 N.Y.S.2d 60, 604 N.E.2d 122 ; Matter of Adam M.D. [Victoria M.C.], 170 A.D.3d 1006, 1007, 94 N.Y.S.3d 860 ). A suspended judgment, however, is permitted only where the court determines that such disposition is in the children's best interests (see Family Court Act § 631 ; Matter of Adam M.D. [Victoria M.C.], 170 A.D.3d at 1007, 94 N.Y.S.3d 860 ; Matter of Chanel C. [Vanessa N.], 118 A.D.3d 826, 828, 988 N.Y.S.2d 75 ). Consequently, where the best interests of the children require termination of parental rights, a suspended judgment may not be entered (see Matter of Jesse D. [John J.D.], 109 A.D.3d 990, 990–991, 972 N.Y.S.2d 92 ; Matter of Jalil U. [Rachel L.-U.], 103 A.D.3d 658, 660–661, 958 N.Y.S.2d 791 ).

Here, we agree with the Family Court's determination that terminating the mother's parental rights and freeing the subject children for adoption by the foster family was in the children's best interests (see Family Ct Act § 631 ). Contrary to the mother's contention, a suspended judgment was not appropriate in light of her failure to consistently visit with the children (see Matter of Quadir C.B. [Emmanuel D.], 166 A.D.3d 968, 969, 88 N.Y.S.3d 477 ; Matter of Chanel C. [Vanessa N.], 118 A.D.3d at 827, 988 N.Y.S.2d 75 ), and her failure to consistently attend therapy addressing the mental health issues that had led to the children's removal in the first place (see Matter of Gabriel M.I. [Steven M.I.], 160 A.D.3d 858, 859, 74 N.Y.S.3d 363 ; Matter of Joshua E.R. [Yolaine R.], 123 A.D.3d 723, 726, 997 N.Y.S.2d...