In re Gianna W.
Matter of Matter of Gianna W.
(Jessica S.)
2012
NY Slip Op 04838
Decided
on June 14, 2012
Appellate
Division, First Department
Published
by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This
opinion is uncorrected and subject to revision before publication in the
Official Reports.
Decided
on June 14, 2012
Andrias,
J.P., Friedman, Sweeny, Manzanet-Daniels, Román, JJ.
7951
[*1]In
re Gianna W., etc., A Dependent Child Under Eighteen
Years of Age, etc.,
and
Jessica S., etc., Respondent-Appellant, Saint Dominic's
Home, Petitioner-Respondent, Administration for Children's Services,
Petitioner.
George
E. Reed, Jr.,
Warren
& Warren, P.C.,
Saint
Dominic's Home, respondent.
Wendy
J. Claffee,
Order,
Family Court, Bronx County (Karen I. Lupuloff, J.),
entered on or about May 10, 2011, which, to the extent appealed from as limited
by the briefs, upon a finding that respondent mother had violated the terms of
a suspended judgment, terminated her parental rights to the subject child, and
committed custody and guardianship of the child to petitioner agency and the
Commissioner of the Administration for Children's Services for the purpose of
adoption, unanimously reversed, on the law and the facts, without costs, the
disposition as to the child vacated, and the matter remanded for an immediate
hearing as to the child's best interests.
The
mother does not dispute the court's finding that she violated the terms of the
suspended judgment by not obtaining suitable housing. However, she does
challenge the determination to terminate her parental rights as a result of
that violation. In particular, the mother argues that it was improper to
terminate her parental rights on the sole ground that she had failed to obtain
suitable housing, and without hearing current evidence as to the child's best
interests.
Contrary
to the mother's contention, a court may terminate parental rights after a
finding of noncompliance with a suspended judgment (Matter of Kendra C.R.
[Charles R.], 68 AD3d 467, 467-468 [2009], lv
dismissed in part, denied in part 14 NY3d 870 [2010]), even where, as here, the
sole ground for noncompliance is the failure to secure suitable housing.
Indeed, the failure to obtain suitable housing is a "material violation of
the terms of the suspended judgment, and constitute[s] independent grounds for
revocation" (id. at 467). [*2]
However,
the matter should be remanded for a dispositional hearing with respect to the
best interests of the child. The Family Court limited all evidence at the
violation hearing to facts occurring up until the filing of the violation
petition. Although this was proper with respect to the fact-finding portion of
the hearing, evidence of matters that occurred after the filing of the petition
is "relevant to the issue of the child's best interests, and [should have
been] considered at the dispositional [phase of the] hearing" (Matter of
Christian Lee R., 38 AD3d 235, 235 [2007], lv denied
8 NY3d 813 [2007]), especially where, as here, there is evidence that the
mother complied with all other agency requirements. She visited regularly with
the child every weekend, remained sober and maintained steady employment since
her release from prison and obtained suitable housing by the time of the
hearing.
THIS
CONSTITUTES THE DECISION AND ORDER
OF
THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:
JUNE 14, 2012
CLERK