Recent Cases on Appellate Remands in Termination of Parental Rights

 

collected by

 

Gary S. Solomon, Esq.

 

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TERMINATION OF PARENTAL RIGHTS - Disposition

 

While upholding a determination that respondent mother violated the order suspending judgment in this termination of parental rights proceeding, the Fourth Department remits for a new dispositional hearing where the child is no longer in a pre-adoptive home and will not consent to adoption.

 

Matter of Shad S., 888 N.Y.S.2d 694 (4th Dept., 11/13/09)

 

 

TERMINATION OF PARENTAL RIGHTS - Disposition - Child's Refusal To Be Adopted


While upholding a finding of permanent neglect, the Second Department, relying on new facts and allegations it may properly consider (see Matter of Michael B., 80 N.Y.2d 299), remits the matter for a new dispositional hearing where the child is 16 years old and will not consent to adoption.

  

Matter of Danielle Joy K., 60 A.D.3d 948, lv. den., 12 N.Y.3d 865

(2d Dept., 3/24/09)

 

 

TERMINATION OF PARENTAL RIGHTS - Disposition

 

While upholding a finding of permanent neglect made against the father, the Third Department reverses the order terminating his parental rights and remits the matter to the family court for entry of a suspended judgment.

 

The children participated in regular weekly visitation with the father following their removal from his care. The child Eric (born in 1992) never indicated a desire to be adopted, and Michelle (born in 1995) expressed her desire to return to her father’s home and/or be adopted by her sister who currently lives with the father. Although the foster parents planned to adopt the younger siblings, there was no testimony that they intended to adopt Eric and Michelle. The repairs to the father’s home have been completed.

 

Matter of Eric G., 59 A.D.3d 785

(3rd Dept., 2/11/09)

 

 

TERMINATION OF PARENTAL RIGHTS - Disposition - Recent Progress By Parent

                                                                 - Child’s Wishes

 

In this termination of parental rights proceeding, the First Department remands for a further dispositional hearing, to determine whether respondent's recent progress has continued and whether she is presently able to meet her eldest son's needs, where the now 14-year-old child has repeatedly expressed opposition to adoption.

  

In re Charles Michael J., 58 A.D.3d 401

(1st Dept., 1/6/09)

 

 

TERMINATION OF PARENTAL RIGHTS - Disposition

 

In this termination of parental rights proceeding, the Second Department remits the case for a new dispositional hearing with respect to one of the children, who is 16 years old and does not have an adoption resource.

  

Matter of Arthur C., 66 A.D.3d 1009

(2d Dept., 10/27/09)

 

 

TERMINATION OF PARENTAL RIGHTS - Disposition

ADOPTION

 

While upholding an order terminating the father’s parental rights, the First Department notes that while the father contends that the foster mother is too old to properly care for the child, age is a factor but is not the dispositive factor in determining whether a child’s best interests would be served by adoption, and that the foster mother has demonstrated her ability and willingness to care for the child and adequate backup resources are available.

 

In re Jayden R., 61 A.D.3d 486

(1st Dept., 4/14/09)

 

 

TERMINATION OF PARENTAL RIGHTS - Disposition - Recent Progress By Parent

 

The First Department rejects respondent’s argument that he was entitled to a suspended judgment in this permanent neglect proceeding where respondent alleged that he had remained drug free for approximately one year and intended to terminate his relationship with the child's mother, which in the past was an impediment to his obtaining custody because of the mother's drug abuse.

 

The child had been in the same kinship foster home for almost six years, since she was six months old, and had lived with her half sister, who was adopted by the foster mother. “Despite respondent's progress in rehabilitating himself, the child should not be denied permanence through adoption in order to provide him with additional time to demonstrate that he can be a fit parent. Unfortunately, his past efforts were not successful and he relapsed into drug abuse.”

  

In re Jada Serenity H., 60 A.D.3d 469

(1st Dept., 3/10/09)

 

 

TERMINATION OF PARENTAL RIGHTS - Disposition - Recent Progress Made By Parent

                                                                      - Suspended Judgment

 

In this permanent neglect proceeding, the Second Department orders a new dispositional hearing where, although the mother did not avail herself of agency services for more than one year, she began to comply with all agency requirements in October 2002 and continued to make significant strides in improving her relationship with her son through July 17, 2007, the date of the dispositional hearing. The caseworker testified that the mother had done everything the agency had asked her to do in order to regain custody of her son.

 

The family court should have suspended judgment for one year, at which point it would have been in a better position to evaluate the mother's progress and determine whether the child's best interests would be better served by his return to the custody of the mother.

  

Matter of Christopher C., 58 A.D.3d 622

(2d Dept., 1/13/09)

 

 

TERMINATION OF PARENTAL RIGHTS - Disposition - Recent Progress

                                                                    - Suspended Judgment

 

The Third Department reverses an order terminating parental rights and directs entry of an order suspending judgment where testimony at the dispositional hearing established that, beginning approximately six months prior to the filing of the petition, the mother began to make some progress in her therapeutic counseling sessions and separated herself from the father’s unhealthy influence; her testimony revealed that she was remorseful for her behavior, was seeking employment and was otherwise preparing for the children's return to her; she acknowledged her children's mental health needs and expressed a willingness to cooperate with petitioner to obtain necessary counseling services for herself and the children; she has actively participated in visitation with the children and has enjoyed appropriate and meaningful interactions with them; and the children expressed interest in being returned to their mother's care.

 

Matter of Audrey I., 57 A.D.3d 1172, lv. den., 12 N.Y.3d 704

(3rd Dept., 12/18/08)

 

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Last updated January 7, 2010

 

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