Family Court, Kings County, March 1, 2021

Leventhal, Mullaney & Blinkoff, LLP (Jeffrey Blinkoff of counsel) for petitioner.

Patrick Garcia for respondent.

Legal Aid Society, Juvenile Rights Practice (Jaclyn Goodman of counsel), Attorney for the Child.

Before the court is an order to show cause (OTSC) filed on September 4, 2020, by petitioner SCO Family of Services requesting that the court extend the period of the respondent father Mr. M's suspended judgment under the same terms for an additional 12 months as permitted under Family Court Act § 633 (b). The suspended judgment was entered on September 8, 2019, at disposition after Mr. M made an admission to permanent neglect in the underlying termination of parental rights proceeding. Petitioner does not allege any violation of the terms of the suspended judgment order; rather, the motion states that the "respondent father has largely complied with the terms of the suspended judgment for the child, and in fact, the agency is working towards arranging a trial discharge." (Aff of Wanda Robles-Jaquez at 4 [attached to the OTSC].) Petitioner asked that this court find that it is in the best interests of the child for the period of the suspended judgment to be extended simply because the trial discharge had not occurred by the motion filing date and there was a possibility that Mr. M could fail to comply with the conditions in the future. (Id. at 8.) The filing of the OTSC resulted in an automatic tolling of the suspended judgment period pursuant to Family Court Act § 633 (e). Respondent submitted an affirmation in opposition to the extension dated September 20, 2020. The Attorney for the Child (AFC) did not submit a written response to the motion.

At the initial return date of the motion on October 13, 2020, Adam had been on an extended visit with his father and all{**71 Misc 3d at 722} counsel consented to Adam being trial discharged to his father two days later with the following conditions.

Mr. M was ordered to:

"1) comply w/ACS supervision including announced and unannounced visits

"2) ensure that Adam attend therapy until discharged

"3) maintain stable housing

"4) submit to random screens and test negative for alcohol and any illicit drugs

"5) continue with relapse prevention

"6) ensure Adam attend school regularly virtually or in person." (Order, dated Oct. 13, 2020.)

The agency requested a hearing on the motion which was scheduled for November 10th. However, at the hearing, the agency offered no evidence to support the extension other than the arguments contained in their motion. The AFC supported a short extension to allow for the trial discharge to continue a bit longer. Respondent maintained his position that the extension should be denied. The court also held a permanency hearing on that date where the agency submitted a report, originally prepared for September 17, 2020, showing that Mr. M was planning for Adam's return to him, that he was obtaining suitable housing and had complied with all services required by the agency, that Adam wanted to be in his father's care and was enjoying what at that time were his overnight visits with him, and that a trial discharge was anticipated soon thereafter.

The court gave an oral decision on the record denying petitioner's motion for the extension and issued a short order stating:

"The agency and the AFC essentially concede in their papers that the Respondent complied with the terms of the suspended judgment entered on Sept. 8, 2019 and, in resting on their papers, have introduced no evidence of 'exceptional circumstances' for an extension as required by Family Court Act § 633. The Court report submitted today [*3]further shows that the Respondent father has complied with the terms of the trial discharge that was begun on October 15th. The fact that the trial discharge occurred AFTER the suspended judgment period would have expired, had it not been tolled due to the filing of this motion, is not a sufficient{**71 Misc 3d at 723} basis in and of itself for an extension. The terms of the suspended judgment required that '[i]f the child is trial discharged, the father shall cooperate with all the rules, regulations and protocols of the trial discharge.' See Order of Suspended Judgment entered 9/8/19. Mr. M has complied with the plain language of that condition. To suggest, as the agency does, that the terms of this condition merit an extension of the suspended judgment for the entire period of the trial discharge would be to impose a condition that the Respondent did not have knowledge of, or bargain for, and would constitute a due process violation in this Court's view. Thus, the period of the suspended judgment as to the RF has expired and the finding of permanent neglect against Mr. M dated 9/8/19 is vacated." (Order, dated Nov. 10, 2020.)

This court then issued a permanency order extending placement until the date of the next permanency hearing on May 10, 2021, as required by Family Court Act § 633 (g), and continuing the conditions of the trial discharge. The court is issuing this written decision to memorialize its reasoning in light of the dearth of case law on the issue.

Following a finding of permanent neglect, a court may enter an order of disposition suspending judgment in accord with Family Court Act § 633. (See Family Ct Act § 631 [b].)

"Of the permissible dispositions in a termination proceeding based on permanent neglect (see, Family Ct Act § 631), the Legislature—consistent with its emphasis on the importance of biological ties, yet mindful of the child's need for early stability and permanence—has provided for a suspended judgment, which is a brief grace period designed to prepare the parent to be reunited with the child. Parents found to have permanently neglected a child may be given a second chance, where the court determines it is in the child's best interests, but that opportunity is strictly limited in time." (Matter of Michael B., 80 NY2d 299, 311-312 [1992] [citations omitted].)

"The maximum duration of a suspended judgment under this section is one year, unless the court finds at the conclusion of that period that exceptional circumstances require an extension{**71 Misc 3d at 724} of that period for one additional period of up to one year." (Family Ct Act § 633 [b].) "The order of suspended judgment must set forth the duration, terms and conditions of the suspended judgment." (Family Ct Act § 633 [c].)

"Unless a motion or order to show cause has been filed prior to the expiration of the period of suspended judgment alleging a violation or seeking an extension of the period of the suspended judgment, the terms of the disposition of suspended judgment shall be deemed satisfied and an order committing the guardianship and custody of the child shall not be entered." (Family Ct Act § 633 [d].)

The statute then proceeds to require that permanency hearings shall continue on the underlying petition as long as the subject child remains in foster care until a permanency goal is achieved. (Family Ct Act § 633 [g].)

"When determining compliance with a suspended judgment, it is the parent's obligation to demonstrate that progress has been made to overcome the specific problems which led to the removal of the child" and "[a] parent's attempt to comply with the literal provisions of the suspended judgment is not enough." (Matter of Darren V., 61 AD3d 986, 987 [2d Dept 2009] [internal quotation marks omitted].) "Compliance with the terms of a suspended judgment may, [*4]but does not necessarily, lead to dismissal of the termination petition." (Id.)

While the statute does not directly state that the permanent neglect finding is dismissed when the suspended judgment is satisfied, this result is implicit in both the language of Family Court Act § 633 (d) that prevents the entry of "an order committing the guardianship and custody of the child[ren]" and the statement of the Court of Appeals that "[c]ompliance may lead to dismissal of the termination petition." (Matter of Michael B. at 311.)

Thus, the issue here is whether SCO has met its burden to establish "exceptional circumstances" for the extension; if not, the extension request must be denied, the finding of permanent neglect vacated, and the petition dismissed.

In the case at hand, the petitioner put a plan in place for Mr. M which was set forth in the terms and order of the suspended judgment. This plan was tailored to address the specific problems which led to Adam's removal and to help Mr. M overcome the mistakes of his past. (See 22 NYCRR 205.50 [a] [the terms and conditions of the suspended judgment "shall be {**71 Misc 3d at 725}related to the adjudicated acts or omissions of respondent"].) This plan required Mr. M to maintain regular visitation, attend all meetings at the agency, maintain a steady source of income, maintain regular participation in intensive psychotherapy at Bridge Back to Life, not use any illegal substances or alcohol, only consume prescribed medications, ensure Adam's medical and educational needs are being maintained, and comply with all home visits whether announced or unannounced. If Mr. M did not comply with some of the terms, an extension or a revocation may have been justified. However, Mr. M diligently complied with this order. The only remaining condition of the suspended judgment was as follows: "If the child is trial discharged the father shall cooperate with all of the rules, regulations and protocols of the trial discharge." (See order of disposition, entered Sept. 9, 2019 [emphasis added].) At the time the OTSC was filed, Mr. M had accepted an apartment through New York City Housing Authority but had not yet moved in, which was the only factor delaying the trial discharge from occurring. Thus, there could be no alleged violation of this condition because Mr. M had not had the chance to comply with it.

At the return date on the OTSC, the agency argued that the suspended judgment should be extended simply because the trial discharge was about to occur and therefore the permanent neglect finding should remain in place after the child returned home to his father essentially "just in case" the transition did not go well. The court was unable to find any case law to support this basis for extension. In fact, there is virtually no discussion in any of the limited case law on this statute as to what constitutes exceptional circumstances and/or how that phrase is defined in this context. It is clear that legal justifications for extensions have not been found when parents have failed to comply with the conditions set forth in the suspended judgment. (See Matter of Darren V., 61 AD3d 986, 987 [2009] [violation of suspended judgment found where, though the parents made some efforts to comply with the conditions, they "failed to show the required progress in certain problem areas"]; Matter of Clifton ZZ. [Latrice ZZ.], 75 AD3d 683 [3d Dept 2010] [respondent mother's request for an extension was denied because she continued to fail to comply even while her motion to extend was pending]; Matter of Lourdes O., 52 AD3d 203, 203 [1st Dept 2008] [respondent failed to show exceptional circumstances justifying an extension and "(l)apses by the agency {**71 Misc 3d at 726}due to a transfer of the case from one agency to another did not relieve respondent of his responsibility to comply with the terms of the suspended judgment"].) It would appear then, under the case law, that where the parent has made substantial strides towards completion of the terms but has a legitimate basis for her/his failure to fully comply, that parent may be able to demonstrate exceptional circumstances if they can show their ability to comply in the requested [*5]additional period of time.

There is a greater dearth of case law on the scenario here where the petitioning agency is the one seeking the extension. By analogizing to the case law pertaining to parents' requests, the court finds that petitioner's justification for the extension here does not rise to the statutorily required level of "exceptional circumstances" because the possibility of parental backsliding or failure would exist in any similarly situated case at any time, even after a trial discharge has begun. There is never a guarantee that the positive progress a parent has made will continue forever. Yet if this were to constitute "an exceptional circumstance," suspended judgments could be extended, at the agency's request, for this reason in virtually any case. The mere fact that this "possibility" would so often exist makes it ordinary, rather than the "exception,"^[FN*] and is the reason it cannot be found to meet the statutory requirement. The weight of having a permanent neglect finding hanging over the head of a parent and child cannot be understated. At any point, if a violation is alleged and proved, the permanent and irrevocable consequence of termination of that parent's rights could occur. Parents who cooperate fully with their service plan and the conditions of their suspended judgment deserve to have the finality of its end. In fact, the Family Court Act specifically states that "[s]uccessive extensions [of a suspended judgment] may not be granted." (Id. § 633 [b].) The best interests of the child Adam in this case are sufficiently protected by the fact that the child's foster care placement on the underlying neglect matter remains in effect throughout Adam's trial discharge to his father. Therefore, the child can be brought back into foster care at any time, if the trial discharge is unsuccessful and Adam is at risk. Here, where SCO Family of Services stated in their order to show cause that "[they were] {**71 Misc 3d at 727}hopeful that Mr. M [would] continue along the same positive trajectory," and there is no established factual or legal basis to believe otherwise aside from pure speculation or possibility of failure, the court must deny the extension.