Opinion
2012-12-28
In the Matter of MALIK S. Onondaga County Department of Social Services, Petitioner–Respondent; v. Jana M., Respondent–Appellant. (Appeal No. 1.).
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Respondent–Appellant. Gordon J. Cuffy, County Attorney, Syracuse (Sara J. Langan of Counsel), for Petitioner–Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Respondent–Appellant. Gordon J. Cuffy, County Attorney, Syracuse (Sara J. Langan of Counsel), for Petitioner–Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.
MEMORANDUM:
In appeal No. 1, respondent mother appeals from an order that, inter alia, revoked a suspended judgment and terminated her parental rights with respect to the child who is the subject of this proceeding. In appeal No. 2, the mother appeals from an order setting forth the terms and conditions regarding posttermination contact with the child.
With respect to appeal No. 1, it is well settled that, during the period of a suspended judgment, a parent “ ‘must comply with [the] terms and conditions set forth in the judgment that are designed to ameliorate’ ” the circumstances which resulted in the original finding of permanent neglect ( Matter of Kaleb U., 280 A.D.2d 710, 712, 720 N.Y.S.2d 249). If the agency establishes by a preponderance of the evidence that there has been noncompliance with any of the terms of the suspended judgment, Family Court may revoke the suspended judgment and terminate parental rights ( see Matter of Gracie YY., 34 A.D.3d 1053, 1054, 825 N.Y.S.2d 303;Matter of Nikkias T., 32 A.D.3d 1220, 1221, 821 N.Y.S.2d 714,lv. denied7 N.Y.3d 716, 826 N.Y.S.2d 181, 859 N.E.2d 921). Here, petitioner met that burden inasmuch as the evidence established that the mother violated numerous terms of the suspended judgment ( see Matter of Elizabeth J. [ Jocelyn J.], 87 A.D.3d 1406, 1406, 930 N.Y.S.2d 507,lv. denied18 N.Y.3d 804, 2012 WL 86945;Matter of Ronald O., 43 A.D.3d 1351, 1352, 842 N.Y.S.2d 801).
The mother's contention that petitioner was required to submit medical or psychological evidence establishing that termination of her parental rights was in the best interests of the child is unpreserved for our review and without merit ( see generally Matter of McCullough v. Brown, 21 A.D.3d 1349, 1349, 801 N.Y.S.2d 447). The mother also failed to preserve for our review her contention that the court should have extended the term of the suspended judgment ( seeFamily Ct. Act § 633[b]; see generally Matter of Sean W. [ Brittany W.], 87 A.D.3d 1318, 1319, 930 N.Y.S.2d 700,lv. denied18 N.Y.3d 802, 2011 WL 6223145).
Nevertheless, petitioner and the mother allege new circumstances and request that we remit this matter to the court for a dispositional hearing. It is well settled that “changed circumstances may have particular significance in child custody matters,” and we may take notice of those new circumstances ( Matter of Michael B., 80 N.Y.2d 299, 318, 590 N.Y.S.2d 60, 604 N.E.2d 122). Here, the alleged new circumstances include allegations that the adoptive placement was disrupted and the child is currently living in a group home, that no other adoptive placement has been located, that the child no longer wishes to be adopted, that the child has reestablished contact with his maternal grandmother, and that the maternal grandmother intends to pursue legal custody. In light of those alleged new circumstances, “ ‘it is not clear that termination of the mother's parental rights is in the child's best interests' ” ( Matter of Shad S. [ Amy C.Y.], 67 A.D.3d 1359, 1360, 888 N.Y.S.2d 694;see Matter of Arthur C., 66 A.D.3d 1009, 1010, 887 N.Y.S.2d 679). We therefore reverse the order in appeal No. 1 and remit the matter to Family Court for a dispositional hearing to determine the child's best interests.
With respect to appeal No. 2, in light of our determination in appeal No. 1, we reverse the order granting posttermination contact.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Family Court, Onondaga County, for a dispositional hearing.