State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 14, 2016 520963 

________________________________

In the Matter of MAYKAYLA FF.

and Another, Permanently

Neglected Children.

WASHINGTON COUNTY DEPARTMENT

OF SOCIAL SERVICES, MEMORANDUM AND ORDER

Respondent;

EUGENE FF.,

Appellant.

________________________________

Calendar Date: June 3, 2016

Before: Peters, P.J., Lahtinen, Egan Jr., Rose and Clark, JJ.

__________

Jeffrey E. McMorris, Glens Falls, for appellant.

Roger A. Wickes, County Attorney, Fort Edward (Daniel S.

Martindale of counsel), for respondent.

Elizabeth A. Donahue, Glens Falls, attorney for the

children.

__________

Rose, J.

Appeal from an order of the Family Court of Washington

County (Michelini, J.), entered March 10, 2015, which, in a

proceeding pursuant to Social Services Law § 384-b, granted

petitioner's motion to revoke a suspended judgment and terminated

respondent's parental rights.

Respondent is the father of a daughter and a son (born in

2008 and 2010, respectively). Since August 2012, he has been
-2- 520963 

serving an indeterminate prison term for his conviction of

burglary in the third degree. Aside from a brief period between

June and November 2012, the children have been in petitioner's

custody and care continuously since May 2011. In 2013,

petitioner commenced this permanent neglect proceeding alleging,

among other things, that respondent had failed to plan for the

future of the children for a period of over one year. In a

November 2013 order entered on respondent's consent, Family Court

(Pritzker, J.) adjudicated the children to be permanently

neglected and issued a one-year suspended judgment. In November

2014, petitioner moved for an order revoking the suspended

judgment and terminating respondent's parental rights. Following

a hearing, Family Court (Michelini, J.) granted that relief. 

Respondent appeals.

We affirm. Respondent's primary argument for reversal is

that he could not violate the condition of the suspended judgment

requiring him to "maintain a safe and stable home if released

during [the] [s]uspended [j]udgment period" because he was

incarcerated for that entire time. In other words, respondent

argues that his release from prison is an unsatisfied condition

precedent to his need to comply with the requirement that he

maintain a stable home environment for the children. However,

the record indicates that, prior to Family Court's issuance of

the suspended judgment, respondent represented that he would be

released while the suspended judgment was still effective, making

it reasonable for the court to assume that respondent would have

an opportunity to comply with all of its terms and conditions. 

Ultimately, respondent was not released due to, among other

things, his admitted failure to complete a substance abuse

treatment program. In any event, it is well established that

"literal compliance with the terms of the suspended judgment will

not suffice to prevent a finding of a violation. A parent must

[also] show that progress has been made to overcome the specific

problems which led to the removal of the child[ren]" (Matter of

Fynn S., 56 AD3d 959, 960 [2008] [internal quotation marks,

brackets and citations omitted]; see Matter of Jonathan J., 47

AD3d 992, 993 [2008], lv denied 10 NY3d 706 [2008]; Matter of

Thomas JJ., 14 AD3d 953, 955 [2005]); this respondent failed to

do. 
-3- 520963 

At the hearing, respondent testified that his initial

permanency plan was to have the children's mother care for them 

while he was incarcerated. That plain failed, however, when the

mother, who was herself the subject of a separate neglect

proceeding initiated by petitioner, relinquished her parental

rights. After petitioner informed respondent of this

development, he sent letters to several family members asking

them to petition for custody of the children. With the exception

of respondent's sister, whose custody petition was denied,

respondent received no responses to his requests. While

respondent arguably made a good faith effort to develop a

permanency plan for his children during his incarceration,

"'[g]ood faith alone is not enough[;] the plan must be realistic

and feasible'" (Matter of Gregory B., 74 NY2d 77, 87 [1989],

quoting Matter of Star Leslie W., 63 NY2d 136, 143 [1984]; accord

Matter of Lawrence KK. [Lawrence LL.], 72 AD3d 1233, 1235 [2010],

lv denied 14 NY3d 713 [2010]). Similarly unrealistic and

infeasible is respondent's current plan to allow petitioner to

retain custody of the children until he is released, which, if he

serves out his full term of imprisonment, will not be until July

2018 (see Matter of Hailey ZZ. [Ricky ZZ.], 19 NY3d 422, 430-431

[2012]; Matter of Gregory B., 74 NY2d at 89-90; Matter of Johanna

M. [John L.], 103 AD3d 949, 950-951 [2013], lv denied 21 NY3d 855

[2013]). As for the likelihood of an earlier release, we note

that respondent has been in prison twice before, received parole

both times and violated that parole both times. Thus, we find

that Family Court's determination that respondent violated the

terms of the suspended judgment was proper, inasmuch as

petitioner proved by a preponderance of the evidence that

respondent had not corrected his longstanding inability to

realistically plan for the children's future (see Matter of

Thomas JJ., 14 AD3d at 955; Matter of Jennifer VV., 241 AD2d 622,

623 [1997]).

We also find unavailing respondent's argument that Family

Court's termination of his parental rights was not in the

children's best interests. "While a parent's failure to comply

with the conditions of a suspended judgment does not

automatically compel termination of parental rights, that

noncompliance constitutes strong evidence that termination is, in

fact, in the best interests of the child" (Matter of Jason H.
-4- 520963 

[Lisa K.], 118 AD3d 1066, 1068 [2014] [internal quotation marks

and citations omitted]; see Matter of Hazel OO. [Roseanne OO.],

133 AD3d 1126, 1128 [2015]). 

In addition to respondent's violation of the suspended

judgment, testimony at the hearing indicated that the children

adamantly expressed their lack of desire to visit respondent in

prison and would, at times, exhibit physically aggressive

behavior when informed of an impending visit. When they did

visit respondent, the children frequently misbehaved – which the

father could not control – and, upon their return, would take

multiple weeks to return to their normal behavioral patterns. 

Furthermore, the children have been in foster care for most of

their lives and lived with the same foster family since June

2013. The family has expressed a willingness to adopt the

children, and the foster mother testified that both children are

developmentally delayed and have behavioral issues, which she has

had some success in correcting through therapeutic services and

parenting techniques. Respondent, meanwhile, displayed a general

lack of knowledge about the children's special needs and did not

offer a realistic plan to ensure that those needs would be met if

he were to reassume custody. Accordingly, we find that the

record provides a sound and substantial basis for Family Court's

conclusion that terminating respondent's parental rights was in

the children's best interests (see Matter of Sequoyah Z. [Melissa

Z.], 127 AD3d 1518, 1521 [2015], lvs denied 25 NY3d 911, 912

[2015]; Matter of Jason H. [Lisa K.], 118 AD3d at 1068; Matter of

Madelyn D. [Direll D.], 112 AD3d 1165, 1166-1167 [2013]).

Peters, P.J., Lahtinen, Egan Jr. and Clark, JJ., concur.
-5- 520963 

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court