In the Matter of Tumario B.

• Decision Date: 01 April 2011
• Citation: 2011 N.Y. Slip Op. 02566,919 N.Y.S.2d 730,83 A.D.3d 1412
• Parties: In the Matter of TUMARIO B., JR.Onondaga County Department of Social Services, Petitioner–Respondent;Valerie L., Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1412

919 N.Y.S.2d 730

2011 N.Y. Slip Op. 02566

In the Matter of TUMARIO B., JR.Onondaga County Department of Social Services, Petitioner–Respondent;Valerie L., Respondent–Appellant.

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

April 1, 2011.

Kelly M. Corbett, Fayetteville, for Respondent–Appellant.Gordon J. Cuffy, County Attorney, Syracuse (Mary Fahey of Counsel), for Petitioner–Respondent.Theodore W. Stenuf, Attorney for the Child, Minoa, for Tumario B., Jr.PRESENT: SMITH, J.P., FAHEY, CARNI, LINDLEY, AND GORSKI, JJ.MEMORANDUM:

Respondent mother appeals from an order terminating her parental rights with respect to her son based on a finding of permanent neglect and granting custody and guardianship of the child to petitioner. We reject the mother's contention that Family Court abused its discretion in refusing to enter a suspended judgment ( see Matter of Elijah D., 74 A.D.3d 1846, 902 N.Y.S.2d 736). The record supports the court's determination that the best interests of the child would be served by freeing the child for adoption by the foster parents, who have cared for the child since birth ( see Matter of Shirley A.S., 81 A.D.3d 1471, 916 N.Y.S.2d 874). “Freeing the child for adoption provided him with prospects for permanency and some sense of the stability he deserved, rather than the perpetual limbo caused by unfulfilled hopes of returning to [the mother's] care” ( Matter of Raine QQ., 51 A.D.3d 1106, 1107, 857 N.Y.S.2d 333, lv. denied 10 N.Y.3d 717, 862 N.Y.S.2d 469, 892 N.E.2d 863; see Matter of Mikia H., 78 A.D.3d 1575, 911 N.Y.S.2d 554, lv. dismissed in part and denied in part 16 N.Y.3d 760, 919 N.Y.S.2d 111, 944 N.E.2d 648).

We conclude, however, that the matter should be remitted for the court to determine, following a further hearing if necessary, whether post-termination visitation between the mother and child would be in the child's best interests ( see Matter of Seth M., 66 A.D.3d 1448, 885 N.Y.S.2d 824, lv. denied 13 N.Y.3d 922, 895 N.Y.S.2d 301, 922 N.E.2d 889; Matter of Josh M., 61 A.D.3d 1366, 877 N.Y.S.2d 784; Matter of Bert M., 50 A.D.3d 1509, 1511, 856 N.Y.S.2d 758, lv. denied 11 N.Y.3d 704, 864 N.Y.S.2d 807, 894 N.E.2d 1198). Although the mother raises this issue for the first time on appeal, we nevertheless address it in the interest of justice. We note that the adoptive parents appear to support such visitation, as does the Attorney for the Child. In fact, the adoptive...