Albany Cnty. Dep't for Children v. Joseph O. (In re Another)

• Decision Date: 25 October 2018
• Docket Number: 525145
• Citation: 165 A.D.3d 1520,87 N.Y.S.3d 367
• Parties: In the MATTER OF BRANDON N. and Another, Alleged to be Permanently Neglected Children. Albany County Department for Children, Youth and Families, Respondent; v. Joseph O., Appellant.
• Court: New York Supreme Court — Appellate Division

165 A.D.3d 1520

87 N.Y.S.3d 367

In the MATTER OF BRANDON N. and Another, Alleged to be Permanently Neglected Children.Albany County Department for Children, Youth and Families, Respondent;

v.Joseph O., Appellant.

525145

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

Calendar Date: September 5, 2018

Decided and Entered: October 25, 2018

Monique B. McBride, Albany, for appellant.

Jeffrey G. Kennedy, Albany County Department of Children, Youth and Families, Albany, for respondent.

Christopher J. Obstarczyk, Latham, attorney for the children.

Before: McCarthy, J.P., Clark, Mulvey and Rumsey, JJ.

MEMORANDUM AND ORDER

Clark, J.Appeal from an order of the Family Court of Albany County (Kushner, J.), entered June 7, 2017, which, in a proceeding pursuant to Social Services Law § 384–b, granted petitioner's motion to revoke a suspended judgment, and terminated respondent's parental rights.

Respondent is the father of two children (born in 2012 and 2013), the oldest of whom suffers from cognitive and physical disabilities and has been in foster care since he was two years old, and the youngest of whom suffers from eczema

and severe asthma and has been in foster care since he was three days old. In 2012 and 2013, separate, but subsequently consolidated, neglect proceedings were commenced against the children's mother¹ and, following her admissions, a finding of neglect was made and an order of supervision was entered.²

In 2015, petitioner commenced separate permanent neglect proceedings against respondent and the children's mother seeking to terminate their parental rights. Thereafter, in April 2016, respondent made certain admissions and consented to an order of fact-finding and disposition that included a six-month suspended judgment that was set to expire in October 2016. The suspended judgment was subject to various terms and conditions, including that respondent "maintain a safe, stable and clean home for the children" by, among other things, properly storing or discarding "clutter" and eliminating "all smoke odors, ashes, dust, mold, mildew or any other substance" that might aggravate the younger child's asthma

. Under the terms of the suspended judgment, respondent's supervised visits with the children would progress to unsupervised home visits only if the family residence, which he shared with the children's mother, was "considered a safe and suitable environment for the children."

In August 2016, after several home visits and inspections revealed that respondent had not made any meaningful progress toward remediating the unsafe and unsanitary conditions in the family home, petitioner moved by order to show cause to revoke the suspended judgment. Respondent waived his right to a hearing and, in November 2016, admitted that he failed to comply with that portion of the suspended judgment requiring him to address the unsafe and unsanitary condition of the family home. Following dispositional hearings, Family Court granted petitioner's application, revoked the suspended judgment and terminated respondent's parental rights. Respondent now appeals.

Initially, respondent's challenges to the underlying permanent neglect finding and the adequacy of petitioner's efforts to strengthen the parent-child relationship are not properly before this Court, as respondent did not appeal from the April 2016 order adjudicating the children to be permanently neglected (see Matter of Jason H. [Lisa K.], 118 A.D.3d 1066, 1067, 987 N.Y.S.2d 476 [2014] ), move to vacate his stipulated admissions of permanent neglect (see Matter of Bayley W. [Patrick K.], 146 A.D.3d 1097, 1100, 45 N.Y.S.3d 265 [2017], lv denied 29 N.Y.3d 907, 2017 WL 1843106 [2017] ; Matter of Abbigail EE. [Elizabeth EE.], 106 A.D.3d 1205, 1206, 965 N.Y.S.2d 213 [2013] ) or seek to withdraw his consent to the resulting suspended judgment (see Matter of Dah'Marii G. [Cassandra G.], 156 A.D.3d 1479, 1480, 65 N.Y.S.3d 840 [2017] ). In any event, respondent's admission that he permanently neglected the children satisfied petitioner's burden of proof on that issue (see Matter of Jason H. [Lisa K.], 118 A.D.3d at 1067, 987 N.Y.S.2d 476 ; Matter of Katie I. [Jonathan I.], 116 A.D.3d 1309, 1310, 984 N.Y.S.2d 465 [2014] ). Moreover, given respondent's permanent neglect admission, petitioner was not required to prove that it made diligent efforts to strengthen the parental relationship (see Matter of Nataylia C.B. [Christopher B.], 150 A.D.3d 1657, 1658, 52 N.Y.S.3d 604 [2017], lv denied 29 N.Y.3d 919, 2017 WL 4051008 [2017] ; Matter of Jason H. [Lisa K.], 118 A.D.3d at 1067, 987 N.Y.S.2d 476 ; Matter of Abbigail EE. [Elizabeth EE.], 106 A.D.3d at 1207, 965 N.Y.S.2d 213 ).

Turning to the merits of respondent's appeal, we find no basis upon which to disturb Family Court's determination to revoke the suspended judgment and terminate respondent's parental rights. A suspended judgment provides a parent who has permanently neglected his or her children with a brief time period within which to become a fit parent with whom the children can be safely reunited (see Matter of Michael B., 80 N.Y.2d 299, 311, 590 N.Y.S.2d 60, 604 N.E.2d 122 [1992] ; Matter of Donte LL. [Crystal LL.], 141 A.D.3d 907, 907, 34 N.Y.S.3d 786 [2016] ; Matter of Hazel OO. [Roseanne OO.], 133 A.D.3d 1126, 1127, 21 N.Y.S.3d 404 [2015] ). During this limited time period, the parent "must comply with terms and conditions meant to ameliorate the difficulty" that led to the suspended judgment ( Matter of Michael B., 80 N.Y.2d at 311, 590 N.Y.S.2d 60, 604 N.E.2d 122 ; see Matter of Jason H. [Lisa K.], 118 A.D.3d at 1067, 987 N.Y.S.2d 476 ). If a preponderance of the evidence establishes the parent's noncompliance, Family Court may revoke the suspended judgment and terminate the parent's parental rights (see Matter of Michael B., 80 N.Y.2d at 311, 590 N.Y.S.2d 60, 604 N.E.2d 122 ; Matter of Alexsander N. [Lena N.], 146 A.D.3d 1047, 1048, 45 N.Y.S.3d 253 [2017], lv denied 29 N.Y.3d 903, 2017 WL 1224159 [2017] ; Matter of Sequoyah Z. [Melissa Z.], 127 A.D.3d 1518, 1519, 8 N.Y.S.3d 469 [2015], lvs denied 25 N.Y.3d 911, 912, 15 N.Y.S.3d 288, 36 N.E.3d 91 [2015] ). While a parent's failure to comply with the terms and conditions of the suspended judgment does not mandate that his or her parental rights be terminated, such noncompliance "constitutes strong evidence that termination is, in fact, in the best interests of the child[ren]" ( Matter of Maykayla FF. [Eugene FF.], 141 A.D.3d 898, 900, 34 N.Y.S.3d 777 [2016] [internal quotation marks and citations omitted]; see Matter of Jayden T. [Amy T.], 118 A.D.3d 1075, 1076, 987 N.Y.S.2d 645 [2014] ; Matter of Madelyn D. [Direll D.], 112 A.D.3d 1165, 1166, 976 N.Y.S.2d 740 [2013] ).

Like the children's mother, respondent admitted to violating that portion of the suspended judgment that required him to "maintain a safe, stable and clean home for the children," and the evidence presented at the dispositional hearing – which is more fully set forth in the mother's related appeal ( Matter of Brandon N. [Renee N.], 165 A.D.3d 1516, 87 N.Y.S.3d 372, 2018 WL 5289132 [decided herewith] ) – amply demonstrated such noncompliance. Briefly, testimony from petitioner's caseworker, the public health nurse and the public health technician who conducted an environmental health assessment at the home, together with the photographic and documentary evidence, established that respondent's home was overridden by a mass accumulation of items and garbage, which created significant health and safety risks for the children, particularly given their individual medical issues. The evidence indisputably established that, although respondent was aware of and received education regarding the children's medical needs and received...