Commitment of Custody and Guardianship of Trudya J., In re

• Citation: 637 N.Y.S.2d 43,223 A.D.2d 470
• Parties: In re Commitment of Custody and Guardianship of TRUDYA J., A Child Under the Age of Eighteen Years, etc., Trudy J., Respondent-Appellant, Commissioner of Social Services, Petitioner-Respondent.
• Decision Date: 23 January 1996
• Court: New York Supreme Court — Appellate Division

Page 43

637 N.Y.S.2d 43

223 A.D.2d 470

In re Commitment of Custody and Guardianship of TRUDYA J., A Child Under the Age of Eighteen Years, etc., Trudy J., Respondent-Appellant, Commissioner of Social Services, Petitioner-Respondent.

Supreme Court, Appellate Division,

First Department.

Jan. 23, 1996.

R.E. Marder, for In re Commitment of Custody and Guardianship of Trudya J.

S.A. Feldman, for Trudy J.

E. Ravitch, for petitioner-respondent.

Before ROSENBERGER, J.P., and ELLERIN, NARDELLI, WILLIAMS and TOM, JJ.

MEMORANDUM DECISION.

Order of disposition, Family Court, New York County (Michael Gage, J.), entered October 14, 1993, which terminated respondent's parental rights and committed custody of the subject child to petitioner for the purpose of adoption by the foster mother, following a fact-finding determination of permanent neglect, unanimously affirmed, without costs.

Clear and convincing evidence established that respondent permanently neglected her child when she did not visit the child for a period of over two years after the child was placed in foster care (Matter of Star Leslie W., 63 N.Y.2d 136, 142-143, 481 N.Y.S.2d 26, 470 N.E.2d 824). The agency's obligation to exercise diligent efforts was excused due to respondent's failure to apprise the agency of her whereabouts for a period well in excess of six months (Social Services Law § 384-b[7][e]; Matter of Adrianna Leshawn B., 208 A.D.2d 472, 617 N.Y.S.2d 327, lv. denied 85 N.Y.2d 806, 627 N.Y.S.2d 322, 650 N.E.2d 1324). The child's best interests were served by terminating respondent's parental rights and freeing her for adoption by her maternal aunt, and the court did not abuse its discretion in refusing to suspend judgment. "Although respondent expressed a desire to care for the child, the evidence established that the child had been adversely affected by [her] belated attempts at parenting...." (Matter of Shannel Marie M., 198 A.D.2d 55, 56, 602 N.Y.S.2d 870, lv. denied 82 N.Y.2d 665, 610 N.Y.S.2d 152, 632 N.E.2d 462).

Nor were respondent's due process rights violated where some brief testimony was taken in her absence as this argument was not preserved for appellant review, and she has shown no prejudice resulting from the court's action (id.).