Recent Cases on Appellate
Remands in Termination of Parental Rights
collected
by
Gary S. Solomon, Esq.
-o0o-
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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