Matter of Maximus H.

[*1] Matter of Maximus H. 2009 NY Slip Op 52529(U) [25 Misc 3d 1241(A)] Decided on December 10, 2009 Family Court, Monroe County Ruhlmann, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 10, 2009
Family Court, Monroe County

In the Matter of Maximus H. Child under the Age of Eighteen Years Permanently Neglected by Jermaine H., RESPONDENT.



B-07428-07



APPEARANCES:

Patricia L. Woehrlen, Esq. for Petitioner

Anthony Leavy, Esq. for Respondent

Christopher G. Johnson, Esq., Attorney for the Child

Dandrea L. Ruhlmann, J.

Respondent's parental rights to his biological son Maximus H. are terminated (Family Court Act § 631 [c]). Custody and guardianship of Maximus is committed to Petitioner Monroe County Department of Human Services with the goal of adoption (Family Court Act § 634). Respondent's request for court-ordered, post-termination visitation with Maximus is denied.

As ordered by this Court by oral decision on August 27, 2009 Maximus H. (d/o/b: //05) (Max) is a child permanently neglected by Respondent Jermaine H. (Social Services Law § 384-b [7] [a]; Family Court Act § 622) as Max has been in foster care since almost his birth while Respondent was incarcerated and did not plan appropriately for Max's future (Matter of Deborah E.C. v Shawn K., 63 AD3d 1724 [4th Dept 2009]; see Matter of "Female" V., 21 AD3d 1118, 1119 [2005], lv denied 6 NY3d 708 [2005]; Matter of Shawn O., 19 AD3d 238 [1st Dept 2005]; cf. Matter of Latasha F., 251 AD2d 1005 [4th Dept 1998]). Respondent contends that the Court should suspend judgment (Family Court Act § 633) to allow him to complete required services as he was recently released from prison. In the alternate, Respondent contends that he should be afforded court-ordered, post-termination visits with Max. An order of disposition shall be made solely on the best interests of the child (Family Court Act § 631). The Court heard testimony from caseworker Staci Weidert and Foster Mother. Respondent did not testify and did not personally appear on the last scheduled dispositional hearing date.

Suspended Judgment: [*2]

A suspended judgment provides a parent previously found to have permanently neglected his child with, "a brief grace period of up to one year designed to prepare the parent to be reunited with the child'" (Matter of Trisha K., 9 AD3d 900, 901 [4th Dept 2004], quoting Matter of Michael B., 80 NY2d 299, 311 [1992]; Family Ct Act § 633; Matter of Nikkias T., 32 AD3d 1220, 1221 [4th Dept 2006], lv denied 7 NY3d 716 [2006]). Typically courts grant suspended judgments where a respondent-parent is closely bonded with his child; is close to satisfactorily addressing the issues that led to the removal of his child; and is visiting consistently and appropriately with his child (see e.g. Matter of Jasmine H., 270 AD2d 950 [4th Dept 2000] [Family Court abused its discretion by refusing to consider a suspended judgment until respondent's treatment program was to be completed in four to six months and Respondent had only one class to complete in the court-ordered parenting program]).

Respondent was incarcerated when Max was born; Max knows Respondent but only through court-ordered, bi-monthly, one-hour supervised visitations. Respondent was subject to disciplinary confinement while incarcerated that led to a brief cessation of visits and a longer incarceration period (see Matter of Ty'Keith R., 45 AD3d 1397 [4th Dept 2007]). Since Respondent's release on or about September 14, 2009 and relocation to Buffalo, the Court increased his visits to twice weekly, yet Respondent has failed to consistently attend all those visits. Ms. Weidert has supplied Respondent with bus passes for visits with Max in Rochester. Respondent informed Ms. Weidert that he plans to remain in Buffalo and will complete the required services there.

In contrast, Foster Mother testified that Max has been in her care for four years, he is part of their family and they plan to adopt Max. Caseworker Weidert testified that Max receives good care in the foster home; he is comfortable and has his own bedroom decorated in the theme from the movie "Cars."The foster family resides in Monroe County; all the family Max knows resides in Monroe County including his biological sister, Lyna, who resides with Max's maternal grandparents. Max currently visits weekly with both Lyna and maternal grandparents.

Ms. Weidert testified that the now released Respondent would have to complete parenting, anger management, substance and alcohol abuse counseling and obtain and sustain suitable housing and employment before Max could reside with him. Respondent informed Ms. Weidert that he is recently employed by the United States Army to build gas tanks and tires, and has been attending Alcoholics Anonymous weekly. Nonetheless Respondent has not yet enrolled in parenting or anger management classes, has not had a drug or mental health evaluation and refuses to sign releases.

Although Respondent seeks to better himself and maintain contact with Max he is unable to arrange a permanent solution for Max; Max has only a minimal relationship with Respondent but has bonded with his foster parents and is in need of a stable, permanent home. A suspended judgment is not an appropriate disposition as it would keep Max in a state of limbo and Max's "emotional well-being must be part of the equation, parental rights notwithstanding" (Matter of Mark M., Jr., 267 AD2d 1045 [4th Dept 1999], quoting Matter of Michael B., 80 NY2d 299, 315 [1992]; see Matter of Tonjaleah H., 63 AD3d 1611 [4th Dept 2009]; Matter of Anthony E., 59 AD3d 929 [4th Dept 2009]; Matter of Ty'Keith R., 45 AD3d 1397 [4th Dept 2007]).

Consideration of both religious and racial identity is important in looking to serve [*3]the best interests of a child (see generally Matter of B. Children, 89 Misc 2d 493, 496-498 [Fam Ct, Kings County 1977]). Social Services Law § 373 requires Petitioner and the court, when practicable, to place a child or give custody through adoption only to persons of the same religious faith as that of the child. Additionally, Petitioner "may consider the cultural, ethnic or racial background of the child and the capacity of the adoptive parent to meet the needs of the child with such a background as one of a number of factors used to determine best interests" but that "[r]ace, color or national origin of the child or adoptive parent may be considered only where it can be demonstrated to relate to the specific needs of an individual child" (18 NYCRR § 421.18 [d] [2]). Respondent highlights that Max's adoptive resources are Caucasian and Roman Catholic whereas Respondent is a Muslim African-American. Yet although of different race and religion, the foster family is the only family Max knows.

After more than four years, Respondent fails at this late date to show that Max's specific needs require placement with a family of identical race. Foster Mother testified that when Max questions his complexion she is able to direct him to appropriate resources and has read Max books about both the Muslim faith and African American culture. She testified that while it is "obvious" that Max's skin is of different complexion their love is more important.

Foster Mother noted that Max and Lyna share the same skin color and visit weekly; thus as Max and Lyna grow and question, they will have each other. The foster parents also have one biological son, Jonathan, age 13. Although the boys share jealousies and disagreements, Foster Mother testified both that she considers this normal sibling rivalry and the brothers love each other.

In sum, it is not in Max's best interests to suspend judgment against Respondent; rather Max is now entitled to permanency with the foster family.

Post-Termination Contact:

Respondent seeks continued court-ordered visits with Max (see Matter of Kahlil S., 35 AD3d 1164, 1166 [4th Dept 2006], lv dismissed 8 NY3d 977 [2007]; see also Matter of Seth M., 67 AD3d 1448 [4th Dept 2009]; Matter of Kahlil S., 60 AD3d 1450 [4th Dept 2009], lv dismissed 12 NY3d 898 [2009]; Matter of Samantha K., 59 AD3d 1012 [4th Dept 2009]; Matter of Josh M., 61 AD3d 1366 [4th Dept 2009]; Matter of Bert M., 50 AD3d 1509 [4th Dept 2008], lv denied 11 NY3d 704 [2008]; compare Matter of Christopher J. III, 63 AD3d 1662 [4th Dept 2009], lv denied 13 NY3d 706 [2009]; Matter of Diana M.T., 57 AD3d 1492 [4th Dept 2008], lv denied 12 NY3d 708 [2009]). In determining whether it is in the Max's best interests to continue to visit Respondent, the Court must consider: (1) the child's age; (2) whether there is a potential adoptive resource and the emotional attachment between the resource and child; (3) whether visitation would interfere with any potential adoptive resource; (4) whether a significant bond between the child and the biological parent exists; and (5) the history of parent-child visitation (see Matter of Imani W., ___ Misc 3d ___, 2009 NY Slip Op 29497 [Fam Ct, Monroe County 2009], citing Matter of the Adoption of Vito, 431 Mass 550, 728 NE2d 292 [2000]).

As outlined above, four-year-old Max is in the home of an adoptive resource and has bonded with the family. Foster Mother testified that she is "not comfortable at all" with allowing Max continued visits with Respondent. She testified that she would not supervise visits and would not allow unsupervised visits due to Respondent's prior conviction and violent nature. [*4]

Petitioner also does not support court-ordered post-termination visitation. Ms. Weidert testified that Max's behavior deteriorated when prison visitation commenced: Max became "clingy," began bed-wetting and exhibited aggression and/or anger issues leading to a recommendation of counseling from Max's pediatrician in August 2009. Ms. Weidert testified that some visits went poorly: during the summers of 2008 and 2009 Max said he did not want to go, asked for his "mommy" and was shy with Respondent.

Ms. Weidert testified that Max's behaviors have remained constant even through the increase of visits from twice monthly to twice weekly and Respondent's release from prison. The visits have gone well but Respondent has been inconsistent, cancelling the majority of October visits. Ms. Weidert admitted that Max reported he "had a great time" with Respondent on September 24, 2009. On October 1, 2009 Respondent brought Max's 11-year-old half brother to the visit and the boys enjoyed playing together, yet on both October 2 and October 6, 2009 Max's biological mother, who previously surrendered her rights, called to cancel visits. On October 8, 2009 Respondent told Ms. Weidert that biological mother was using meth, yet on that same date Respondent gave Max her photograph. On October 20, 2009 Respondent called and indicated that he would not make it to the visit scheduled the next day as his 19-year-old son was shot in a drive-by shooting. Respondent did not call or show for a visit on October 22, 2009. When Respondent called on October 26, 2009 he indicated that he was "out of town" and cancelled his next scheduled visit.

Most telling, Respondent did not appear on the last date scheduled for dispositional hearing and his attorney had not heard from him. While Max enjoys some visits with Respondent, Max does not know Respondent as his father. Foster Mother testified that both she and Max consider foster father to be Max's father, although Ms. Weidert admitted that she has not personally observed many interactions between Max and foster father because of his work schedule.

In Matter of Samantha K. (59 AD3d 1012 [4th Dept 2009]), the Court affirmed termination of an incarcerated father's parental rights while allowing the father to retain visitation rights even though not advocated for by the Attorney for the Child. There however the child was in the care of her great aunt who testified that, although she did not want the child to visit respondent-father in prison, she would be open to therapeutic visits after his release. Respondent-father therein was incarcerated just prior to his daughter's third birthday and visited regularly with her until transferred a prohibitive distance. Allowing post-termination visitation would promote a continuing non-traditional relationship between the child and her biological father (see Matter of A.B. v D.W., 16 Misc 3d 1101[A] [Fam Ct, Monroe County 2007, citing Matter of Jovan J., 7 Misc 3d 1028[A] [Fam Ct, Monroe County 2005]). Here distinguishable, Max has never had a relationship with Respondent; and Foster Mother, non-kin, in no uncertain terms does not support continued visits.

Max's attorney strenuously advocates both that Max should be freed for adoption by the foster family and court-ordered visitation should cease. Respondent failed to offer any proof that continued court-ordered visitation is in Max's best interest. Indeed, Respondent did not testify and did not even appear for the conclusion of the dispositional hearing (see Matter of Raymond D, 45 AD3d 1415 [4th Dept 2007]). The Court thus concludes post-termination contact is contrary to the child's best interests.

NOW THEREFORE, it is [*5]

ORDERED that the guardianship and custody of Maximus H. is committed to Petitioner for the purpose of adoption by the foster family; and it is further

ORDERED that Respondent's request for court-ordered, post-termination contact with Maximus H. is denied.

Dated this 10th day of December, 2009 at Rochester, New York.

___________________________________

Hon. Dandrea L. Ruhlmann

FAMILY COURT JUDGE

PURSUANT TO § 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF THE RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.