| Matter of Hayley PP. (Christal PP.\MCindy QQ.) |
| 2010 NY Slip Op 07455 [77 AD3d 1133] |
| October 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of Hayley PP., a Neglected Child. Broome CountyDepartment of Social Services, Respondent; Christal PP., Respondent and Cindy QQ., Appellant,et al., Respondent. (Proceeding No. 1.) In the Matter of Brianna PP., a Neglected Child. BroomeCounty Department of Social Services, Respondent; Christal PP., Respondent, and Cindy QQ.,Appellant, et al., Respondent. (Proceeding No. 2.) |
—[*1] Kuredin V. Eyitina, Broome County Department of Social Services, Binghamton, forBroome County Department of Social Services, respondent. Kathleen M. Spann, Greene, for Christal PP., respondent. Margaret McCarthy, Ithaca, attorney for the children.
Malone Jr., J. Appeals from two orders of the Family Court of Broome County (Pines, J.),entered December 15, 2009, which granted petitioner's applications, in two proceedings pursuantto Family Ct Act article 10-A, to terminate the placement of the subject children.
Respondent Christal PP. (hereinafter respondent) is the biological mother of fourchildren—two of whom, Haley (born in 2005) and Brianna (born in 2006), are the subjectsof these proceedings. In April 2007, petitioner commenced a neglect proceeding againstrespondent and the children's maternal grandfather.[FN1]Respondent Cindy QQ., a family friend who had been granted temporary custody of Brianna twomonths earlier, withdrew her previously filed Family Ct Act article 6 petitions seeking custody ofboth Brianna and Haley upon the condition that she be granted intervenor status in the underlyingneglect proceeding.[FN2]After a finding of neglect was made, Family Court continued Brianna's placement with CindyQQ. and, ultimately, placed Haley with her as well. Petitioner thereafter provided respondentwith various services and established a permanency goal of returning the children to her custody.
In July 2009, petitioner commenced the instant proceedings seeking to terminate thechildren's placement and reunite them with respondent. Cindy QQ. opposed those applications,and two hearings ensued. At the conclusion of the September 2009 hearing, Family Court grantedtemporary custody of the children to respondent pending completion of the permanency hearing.Following completion of the second hearing in November 2009, Family Court grantedpetitioner's applications, terminated the children's placement and ordered that they be returned torespondent's custody. Family Court also denied Cindy QQ.'s request for visitation with thechildren. These appeals by Cindy QQ. ensued.
We affirm. Insofar as is relevant to these appeals, Family Ct Act § 1089 vests FamilyCourt with the authority to determine whether, "upon the proof adduced . . . and inaccordance with the best interests and safety of the child, . . . the placement of thechild [should] be terminated and the child returned to the parent" (Family Ct Act § 1089[d] [1]; see Matter of Cristella B.,65 AD3d 1037, 1039 [2009]; Matter of Amber B., 50 AD3d 1028, 1029 [2008]). Suchdetermination depends upon, among other things, "whether the parent has demonstrated [*2]that progress has been made to overcome the specific problemswhich led to the removal of the child" in the first instance (Matter of Brandon DD. [Jessica EE.], 75 AD3d 815, 816 [2010][internal quotation marks and citation omitted]). In this regard, "we accord great deference toFamily Court's credibility determinations and factual findings, and will not disturb them unlessthey are lacking a substantial basis in the record" (Matter of Kasja YY. [Karin B.], 69 AD3d 1258, 1259 [2010],lv denied 14 NY3d 711 [2010]; see Matter of Kayla J. [Michael J.], 74 AD3d 1665, 1666-1667[2010]).
Here, petitioner's caseworker and parent aide, as well as the court-appointed specialadvocate, all testified as to the "tremendous progress" that respondent had made in the yearpreceding the hearings. Specifically, respondent completed a variety of recommended classes,underwent mental health counseling, addressed the safety concerns originally identified bypetitioner, cooperated with petitioner, accepted the recommendations of the parent aide,appropriately interacted with and disciplined her children and overall demonstrated greatermaturity and a significantly improved attitude. To the extent that Cindy QQ. expressed concernsregarding respondent's ability to be an effective parent, this presented a credibility issue forFamily Court to resolve and, in light of the ample testimony supporting reuniting respondent withHaley and Brianna, we cannot say that the court's decision in this regard lacked a sound andsubstantial basis in the record.
Nor are we persuaded that Family Court erred in failing to award Cindy QQ. visitation withthe children. Even accepting that Cindy QQ. had a close and loving relationship with Haley andBrianna, the case law makes clear that "a nonbiological parent does not have standing to request. . . visitation when a biological parent is fit and opposes [such] visitation" (Gulbin v Moss-Gulbin, 45 AD3d1230, 1231 [2007], lv denied 10 NY3d 705 [2008]; see Matter of Ronald FF. vCindy GG., 70 NY2d 141, 144-145 [1987]; Matter of Cindy P. v Danny P., 206AD2d 615, 616 [1994], lv denied 84 NY2d 808 [1994]). Respondent's parental fitness isimplicit in Family Court's decision to return Haley and Brianna to her and, as such, Family Courtproperly left the issue of visitation to respondent's discretion. Cindy QQ.'s remaining contentions,to the extent not specifically addressed, have been examined and found to be lacking in merit.
Mercure, J.P., McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the orders areaffirmed, without costs.
Footnote 1: The grandfather appeared onlyintermittently and is not a party to this appeal.
Footnote 2: Cindy QQ. is not a certifiedfoster parent.