| Matter of Brendan N. (Arthur N.) |
| 2010 NY Slip Op 02690 [72 AD3d 1138] |
| April 1, 2010 |
| Appellate Division, Third Department |
| In the Matter of Brendan N., a Neglected Child. Columbia CountyDepartment of Social Services, Respondent; Arthur N., Appellant. (Proceeding No. 1.) In theMatter of Janet N. et al., Appellants, v Arthur N. et al., Respondents. (Proceeding No.2.) |
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Malone Jr., J. Appeals (1) from an order of the Family Court of Columbia County (Nichols,J.), entered November 19, 2008, which, among other things, granted petitioner's application, inproceeding No. 1 pursuant to Family Ct Act article 10-A, to approve the permanency plan forrespondent's child, and (2) from an order of said court, entered November 19, 2008, whichdismissed petitioners' application, in proceeding No. 2 pursuant to Family Ct Act article 6, for anorder of visitation.
In March 2007, as a result of a domestic violence incident, the Columbia County Departmentof Social Services (hereinafter DSS) temporarily removed the subject child (born in 2006) on anemergency basis from the care of his mother and respondent Arthur N. (hereinafter the father).DSS thereafter commenced a neglect proceeding against the parents, alleging, as is relevant here,that the father was in violation of the terms of his probation, continued to use cocaine andmarihuana while caring for the child and engaged in domestic violence against the mother in thechild's presence. Following a hearing, Family Court made a finding of neglect against the fatherand mother and, as a result, the child was placed in the custody of DSS. Meanwhile, petitionerJanet N., the child's paternal grandmother, unsuccessfully sought guardianship of the child threetimes and was also unsuccessful in her application for kinship foster care. Then, in April 2008,the mother was murdered and the father was arrested and charged with her death. The followingmonth, DSS commenced a permanent neglect proceeding against the father, seeking thetermination of his parental rights.
In September 2008, DSS commenced proceeding No. 1 against the father seeking FamilyCourt's approval of the child's permanency plan, the goal of which was changed from returningthe child to his parents to placement for adoption. Shortly thereafter, the grandmother andpetitioner Arthur CC., the paternal grandfather, commenced proceeding No. 2 against the fatherand DSS seeking visitation with the child. Family Court considered both applications in acombined hearing, at the time of which the father was incarcerated pending trial for the murderof the mother.[FN1]Following the hearing, Family Court approved the permanency plan of placement for adoption.In addition, the court found that visitation with the grandparents was contrary to the child's bestinterests and dismissed the visitation petition. The father appeals from Family Court's order inproceeding No. 1 approving the permanency plan and the grandparents appeal from the order inproceeding No. 2 dismissing their visitation petition.
Initially, as the result of the entry of subsequent orders of Family Court, the father's appeal inproceeding No. 1 must be dismissed as moot (see Matter of Andrew L. [Cassi M.], 68 AD3d 1477, 1478 [2009];Matter of Kila DD., 34 AD3d1168, 1169 [2006]).[FN2][*2]
As for the grandparents' appeal in proceeding No. 2, wefirst note that to the extent that the grandmother challenges Family Court's denial of herguardianship and kinship foster care applications, those claims are not properly before this Courtbecause the record does not contain a notice of appeal with respect to dismissals of thoseapplications (see CPLR 5513, 5515; Matter of Catherine P., 269 AD2d 702, 703[2000], lv denied 95 NY2d 751 [2000]). With respect to the grandparents' remainingcontentions, we are not persuaded that Family Court abused its discretion in denying theirapplication for visitation.
The record supports the determination that visitation with his grandparents would not be inthe child's best interests.[FN3]Importantly, at the time of the hearing, the then two-year-old child had spent all but the first fewmonths of his life in the custody of DSS, and the grandparents had not developed a meaningfulrelationship with the child (see Matter of Ziarno v Ziarno, 285 AD2d 793, 794 [2001],lv denied 97 NY2d 605 [2001]). Moreover, the grandmother testified at the hearing thatshe did not believe that the father—her son—had killed or ever abused the child'smother because her son and the mother had always denied the allegations of domestic violence.She admitted that, when a DSS caseworker showed her medical documentation that indicatedthat the mother's story was inconsistent with her injuries, she told the caseworker that doctorscould be wrong and that the mother was prone to accidents. The grandmother admitted that shehad paid for the motel room the father shared with the mother after his release from jail, wherehe had been incarcerated for violating protective orders that had prohibited him from contactingthe mother, despite her knowledge that DSS "didn't want them to be together right away." Thegrandmother explained that she helped finance the arrangement for the mother and the fatherbecause the grandfather refused to allow them to stay with him because he felt that "theyneed[ed] to fend for themselves." Both grandparents admitted to having knowledge that thefather was using drugs, but apparently did nothing to intervene. The foregoing indicates that atthe time of the grandparents' application, they did not appreciate the seriousness of the domesticviolence that resulted in the child's removal from his parents' care, and they demonstrated poorjudgment with respect to his well-being. Accordingly, it was not an abuse of discretion forFamily Court to determine that visitation with them was not in the child's best interests (compare Matter of E.S. v P.D., 8NY3d 150, 157-158 [2007]; Matterof Principato v Lombardi, 19 AD3d 602, 602-603 [2005]).
Cardona, P.J., Lahtinen, Stein and Garry, JJ., concur. Ordered that the appeal from the orderentered November 19, 2008 in proceeding No. 1 is dismissed, as moot, without costs. Orderedthat the order entered November 19, 2008 in proceeding No. 2 is affirmed, [*3]without costs.
Footnote 1: The father was subsequentlyconvicted of murder in the second degree for the death of the mother and sentenced to 25 yearsto life in prison. His appeal of that conviction is currently pending in this Court.
Footnote 2: In July 2009, Family Courtapproved another permanency plan submitted by DSS and then, in August 2009, the courtadjudicated the child to be permanently neglected and terminated the father's parental rights.Appeals from both orders are currently pending in this Court.
Footnote 3: The grandparents had automaticstanding to seek visitation due to the mother's death (see Domestic Relations Law§ 72 [1]).