| Matter of Dezerea G. (Lisa G.) |
| 2012 NY Slip Op 05580 [97 AD3d 933] |
| July 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Dezerea G., a Child Alleged to be Neglected.Clinton County Department of Social Services, Respondent; Lisa G., Appellant. (Proceeding No.1.) In the Matter of Dezerea G., a Child Alleged to be Neglected. Clinton County Department ofSocial Services, Respondent; Robert H., Appellant. (Proceeding No. 2.) (And Another RelatedProceeding.) |
—[*1] Diane Webster Brady, Plattsburgh, for Robert H., appellant. Christine G. Peters, Clinton County Department of Social Services, Plattsburgh, forrespondent. [*2]Omshanti Parnes, Plattsburgh, attorney for thechild.
McCarthy, J. Appeals (1) from an order of the Family Court of Clinton County (Lawliss, J.),entered September 9, 2011, which granted petitioner's applications, in two proceedings pursuantto Family Ct Act article 10, to adjudicate respondents' child to be neglected, (2) from an order ofsaid court, entered September 20, 2011, which, among other things, granted petitioner'sapplication, in a proceeding pursuant to Family Ct Act article 10-A, to extend the placement ofrespondents' child, and (3) from an order of protection issued thereon.
Respondent Lisa G. (hereinafter the mother) and respondent Robert H. (hereinafter thefather) are the parents of a daughter (born in 2005). In 2007, Family Court, on respondents'consent, entered an order granting sole legal and physical custody to the mother with supervisedvisitation to the father. The custody order, as well as related orders of protection set to expire in2023, forbid the father from unsupervised contact with the child and order the mother to ensurethat the father remained at least 1,000 feet from the child except during visitation supervised byspecified individuals or a named program.
In 2011, when the father was living with the mother and child, petitioner commenced neglectproceedings against respondents, primarily citing their violation of the orders of protection andthe father's prior violence toward the mother. At the initial appearance, respondents consented totemporary removal of the child from their care and placement with a maternal aunt. Following afact-finding hearing, Family Court concluded that the child was neglected by respondents. Themother appeals from that order.
After a combined dispositional hearing and permanency hearing, Family Court continuedplacement with the aunt, modified the permanency goal to placement with a fit and willingrelative, and ordered that respondents' visitation be supervised. The court also issued orders ofprotection prohibiting unsupervised contact with the child by either respondent. Both respondentsappeal from the dispositional/permanency order and the father appeals from one order ofprotection.
Family Court's neglect finding is supported by the evidence. Courts will sustain a finding ofneglect if the petitioner establishes by a preponderance of the evidence that the child's physical,mental or emotional well-being was harmed or in imminent danger of harm as a result of thefailure by a parent to exercise a minimum degree of care (see Family Ct Act § 1012[f] [i] [B]; Matter of Xavier II., 58 AD3d 898, 899 [2009]). In making a determinationregarding the minimum degree of care, courts view the parent's behavior objectively incomparison to the expected actions of a reasonable and prudent parent in the same circumstances(see Matter of Samuel DD. [MargaretDD.], 81 AD3d 1120, 1122 [2011]). Here, the father had a history of violent behavior,including a rape of the mother while he left the child in his vehicle in 2007 and an attack wherehe choked the mother in 2010 while the child was apparently sleeping in the same house. Thefather also had a criminal history that included convictions for assault, endangering the welfareof a child and criminal contempt. The mother minimized the father's behavior and desired tocontinue her and the child's relationship with him (see Matter of Shalyse [*3]WW., 63AD3d 1193, 1196 [2009], lv denied 13 NY3d 704 [2009]).
In 2007, respondents consented to orders of protection prohibiting the father fromunsupervised contact. Family Court found, as supported by the record, that respondents wereaware that those orders remained in effect, but permitted the father to have contact with and livewith the child in violation of the orders. Respondents involved the child in lying and deception,as well as adult issues. She told more than one person that she and the mother hid when thepolice came to the door, the father hid under a bathtub and ran into an orchard to avoid thepolice, and that she skipped school and the mother falsely claimed the child was sick so that theycould pick up the father from the hospital. The child also stated that her father had used pillsbefore, the police hated him and they wanted to put him in jail.
The child's behavior in school and on the bus deteriorated around the time that petitioner andpolice began investigating whether respondents were violating the orders, which coincided withrespondents' efforts—including involvement of the child—to avoid and deceive theinvestigators. A counselor testified that the child increasingly shut down or either changed thetopic or recanted after she made any statements about the father's presence. After being removedfrom respondents' care, the child's behavior improved. Respondents' actions fell short of whatwould be expected of reasonable and prudent parents and placed the child in imminent danger ofharm to her mental or emotional well-being. Thus, Family Court's finding of neglect is supportedby a preponderance of the evidence (seeMatter of Thomas M. [Susan M.], 81 AD3d 1108, 1108-1109 [2011]; Matter of Paul U., 12 AD3d 969,971 [2004]).
In December 2011, to resolve a custody petition filed by the aunt, respondents consented toan order granting the aunt sole legal and physical custody and providing respondents withsupervised visitation. This permanent order of custody rendered the appeals from thedispositional aspect of the dispositional/permanency order moot (see Matter of Jacob SS., 59 AD3d825, 826 [2009]). Similarly, as the order of protection entered in September 2011 expired byits own terms in April 2012, the father's appeal from it is moot (see Matter of Chelsea M. [Ernest M.],68 AD3d 1489, 1489 [2009]; Matter of Destiny HH., 63 AD3d 1230, 1231 [2009], lvdenied 13 NY3d 706 [2009]).[FN*]
Family Court did not err in changing the child's permanency goal to placement with a fit andwilling relative. At the conclusion of a permanency hearing, the court has the authority to modifyan existing permanency goal and must enter a disposition based upon the proof adduced and inaccordance with the best interests of the child (see Family Ct Act § 1089 [d] [2];Matter of Jacelyn TT. [ToniaTT.—Carlton TT.], 80 AD3d 1119, 1120 [2011]). While returning the child to theparent is the preferred outcome, "when such reunification is not possible because of a parent'sunwillingness or inability to correct the conditions that led to the removal of the child[ ] from thehome, the goal then shifts to finding a permanent, stable solution as soon as possible" (Matter of Destiny EE. [Karen FF.], 82AD3d 1292, 1294 [2011]). Here, the court found, as supported by [*4]the record, that the mother continues to place her interest inmaintaining her relationship with the father, despite his history of violence and the orders ofprotection, over her relationship with and the safety of the child. The court found it unlikely thatthe mother's thinking would change in the foreseeable future—considering that she hadalready undergone 15 years of mental health counseling—such that the child would be ableto safely return to the mother's care. Accordingly, Family Court did not abuse its discretion inmodifying the permanency goal to placement with a fit and willing relative (see Matter ofJacelyn TT. [Tonia TT.—Carlton TT.], 80 AD3d at 1121-1122).
Mercure, J.P., Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the orders enteredSeptember 9, 2011 and September 20, 2011 are affirmed, without costs. Ordered that the appealfrom the order of protection entered September 20, 2011 is dismissed, as moot, without costs.
Footnote *: While the father argues that theorder of protection expires in 2023, he is mistakenly referring to the 2007 order of protection. Wehave no jurisdiction to address that order, as he did not appeal from it and the time to do so haslong passed (see Family Ct Act § 1113; Matter of Houck v Garraway, 293AD2d 782, 783 n 2 [2002]).