| Matter of Keaghn Y. (Heaven Z.) |
| 2011 NY Slip Op 03703 [84 AD3d 1478] |
| May 5, 2011 |
| Appellate Division, Third Department |
| In the Matter of Keaghn Y., a Child Alleged to be Neglected.Clinton County Department of Social Services, Respondent; Heaven Z.,Appellant. |
—[*1] Cynthia Feathers, Saratoga Springs, attorney for the child.
Kavanagh, J. Appeal from an order of the Family Court of Clinton County (Lawliss, J.),entered October 5, 2010, which, among other things, granted petitioner's application, in aproceeding pursuant to Family Ct Act article 10, to adjudicate respondent's child to be neglected.
Respondent, in May 2009, consented to a finding being entered that she was unable to carefor her son (born in 1996) and, as a result, an order was issued awarding legal and physicalcustody of the child to his stepfather.[FN1]One year later, after being hospitalized in a mental health unit, the child was diagnosed withpost-traumatic stress and mood disorders and found to be at high risk of sexually assaultingyounger children. The child, with respondent's consent, was subsequently placed in the custodyof petitioner after the stepfather was no longer willing to care for him (see Family Ct Act§ 1027) and was enrolled in a residential treatment facility.[*2]
Shortly thereafter, petitioner commenced this Family CtAct article 10 proceeding alleging that the child had been neglected because, among other things,respondent had allowed him to be exposed to domestic abuse.[FN2]Upon the consent of respondent and the stepfather, Family Court ordered that the child'splacement with petitioner be continued (see Family Ct Act § 1027) and, afterrespondent admitted certain allegations made in the petition, entered a finding of neglect. After acombined dispositional and permanency hearing (see Family Ct Act art 10-A), an orderwas entered continuing the child's placement with petitioner, but provided that respondent haveunsupervised visitation with the child on one day during the week, which could not occur on aSaturday or Sunday, while he resided at the residential facility. Also, the court issued an order ofprotection directing respondent to stay away from the child except when authorized by thevisitation schedule and directed that she submit to random drug tests. Respondent now appeals.
Respondent initially claims that Family Court's dispositional order and its determination thatthe child remain in petitioner's custody is not in the child's best interests (see Matter of Kaleb U. [HeatherV.—Ryan U.], 77 AD3d 1097, 1099-1100 [2010]; Matter of Elijah Q., 36 AD3d 974,976 [2007], lv denied 8 NY3d 809 [2007]; Matter of Alaina E., 33 AD3d 1084, 1087 [2006]). We disagree.This order was issued after it had been established at the hearing that, on nine separate occasions,reports had been filed against respondent charging her with neglect and child abuse, all of whichwere subsequently found to be indicated. In addition, respondent continues to reside with herhusband, who is barred by an order of protection from having any contact with her other childrenbecause of his persistent and chronic abuse of alcohol and drugs. We also note that the child, byall accounts, appears to be thriving in the residential setting where he has been placed bypetitioner and is responding positively to treatment and counseling. This record, in our view,establishes that Family Court's determination to continue placement of the child with petitioner issupported by a sound and substantial basis in the record and is in his best interests (see Matter of Brandon DD. [JessicaEE.], 74 AD3d 1435, 1437 [2010]; Matter of Elijah Q., 36 AD3d at 976;Matter of Michael V., 279 AD2d 668, 669 [2001], lv denied 96 NY2d 709[2001]).[FN3]
We do agree with respondent that the limitations imposed by Family Court on her visits withthe child are not warranted and not in the child's best interests. In that regard, the child's therapisttestified that increased contact between the child and respondent would benefit the child and is inhis long-term interests. In fact, all involved in this proceeding, including petitioner, now agreewith respondent's request that the restrictions on visitation imposed by Family Court—andin particular its decision to limit respondent to one visit per week—be lifted. As a result,we are of the view that the court's dispositional order should be modified to allow respondentmore contact with the child to add visitation on Saturday of each week.
Finally, respondent argues that Family Court, by becoming intimately involved in theexamination of witnesses who testified at the hearing and by issuing, on its own accord, asubpoena calling for the production of certain records, demonstrated that is was biased againsther and did not provide her with a fair hearing. Family Court, on its own motion, issued an order[*3]directing that the child's school records be produced and thatan expert who it appointed to review these records advise the court on the child's educationalneeds. While such a practice, coupled with the court's involvement in the examination of thewitnesses who testified at the hearing, may, in some circumstances, present legitimate questionsregarding the court's impartiality (seeMatter of Blaize F. [Christopher F.], 74 AD3d 1454, 1454-1455 [2010]; Matter ofStampfler v Snow, 290 AD2d 595, 596 [2002]), we note that neither party opposed thecourt's decision to issue the subpoena or objected to its questioning of witnesses and, therefore,such a challenge has not been preserved for our review (see Matter of Borggreen v Borggreen, 13 AD3d 756, 757 [2004];compare Matter of Stampfler v Snow, 290 AD2d at 596).[FN4]Moreover, the records that were requested were clearly relevant to the issues raised at thishearing and were sought for a benign purpose of determining the legitimate educational needs ofthe child (see Family Ct Act § 1089 [d] [2] [v]; compare Matter of Blaize F.[Christopher F.], 74 AD3d at 1454-1455; Matter of Stampfler v Snow, 290 AD2d at596).
Mercure, J.P., Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the order ismodified, on the law, without costs, by reversing so much thereof as limited respondent'svisitation with the child to one day per week; respondent's visitation shall be extended to allowfor additional visitation by respondent with the child on Saturdays at the residential facility wherethe child resides; and, as so modified, affirmed.
Footnote 1: Respondent has other childrenwho are not involved in this proceeding.
Footnote 2: A Family Ct Act article 10petition brought against the stepfather has been withdrawn.
Footnote 3: We reach this result even thoughpetitioner now supports respondent's request that the child be returned to his home.
Footnote 4: This finding should not beinterpreted as an approval by this Court of the practices employed by Family Court in thisproceeding (see Matter of Blaize F. [Christopher F.], 74 AD3d at 1455; Matter ofStampfler v Snow, 290 AD2d at 596).