| Matter of Gloria DD. (Brenda DD.) |
| 2012 NY Slip Op 07000 [99 AD3d 1044] |
| October 18, 2012 |
| Appellate Division, Third Department |
| In the Matter of Gloria DD. and Another, Neglected Children.Cortland County Department of Social Services, Respondent; Brenda DD., Appellant. (AndAnother Related Proceeding.) |
—[*1] Kathleen A. Sullivan, Cortland County Department of Social Services, Cortland, forCortland County Department of Social Services, respondent. Margaret McCarthy, Ithaca, for Patrick EE., respondent. Natalie B. Miner, Homer, attorney for the children.
Kavanagh, J. Appeal from an order of the Family Court of Cortland County (Campbell, J.),entered February 14, 2011, which, among other things, granted petitioner's application, in aproceeding pursuant to Family Ct Act article 10, to hold respondent in violation of a priordispositional order.
Respondent is the mother of a daughter and son (born in 2000 and 2001, respectively). InMay 2008, upon a petition filed by petitioner, the children were found to have been neglected asa result of being exposed to respondent's tumultuous and, at times, violent relationship with [*2]her boyfriend.[FN*]A second petition filed in January 2010 resulted in a finding that respondent had neglected thechildren because she failed to adequately provide for their education and continued herrelationship with her boyfriend despite the adverse effect it was having on the children. Pursuantto this order, which was entered on consent, respondent, among other things, was required toallow petitioner's caseworkers full and unlimited access to the children, and she was obligated toparticipate in counseling. It also required her to follow recommendations made for the childrenby a child psychologist, insure that they attended school and directed that she not allow any otherperson to reside in the family home with the children.
Two months later, another petition was filed requesting that the children be temporarilyremoved from respondent's care because she had willfully violated the terms of this order.Specifically, respondent was charged with continuing her relationship with the boyfriend, failingto insure that the children attended school and not responsibly addressing their nutritional needs.By order to show cause dated March 15, 2010, Family Court placed the children with petitionerand, after a fact-finding hearing, found that respondent had willfully violated material terms ofthis order. A dispositional hearing was subsequently held and Family Court ordered petitioner tocontinue to care for the children, directed respondent to remain under petitioner's supervision,and required that her visits with the children be supervised. Respondent now appeals.
Respondent initially argues that petitioner failed to establish at the hearing that keeping thechildren in petitioner's custody was in their best interests. Once a parent has been found to havewillfully and without justification violated an order of supervision, Family Court may "revoke theorder of supervision . . . and enter any order that might have been made at the timethe order of supervision . . . was made" (Family Ct Act § 1072 [a];see §§ 1052 [a] [iii]; 1055 [a] [i]). "The dispositional order must reflect aresolution consistent with the best interests of the children after consideration of all relevant factsand circumstances, and must be supported by a sound and substantial basis in the record" (Matter of Alaina E., 33 AD3d1084, 1087 [2006] [citations omitted]; accord Matter of Kaleb U. [Heather V.—Ryan U.], 77 AD3d1097, 1099-1100 [2010]; see Matterof Xiomara D. [Madelyn D.], 96 AD3d 1239, 1242 [2012]). Here, Family Courtconcluded that the children would be at risk if returned to respondent because of her ongoingrelationship with the boyfriend and her failure to appreciate the adverse effect it was having onthem. In addition, the court noted respondent's failure to meet certain treatment goals inconnection with her mental health counseling and the progress the children had made while inpetitioner's care. These findings enjoy a sound and substantial basis in the record and provideample support for Family Court's decision to continue the children's placement with petitioner(see Matter of Xiomara D. [Madelyn D.], 96 AD3d at 1242; Matter of Keaghn Y. [Heaven Z.], 84AD3d 1478, 1478-1479 [2011]; Matter of Kenneth QQ. [Jodi QQ.], 77 AD3d 1223, 1224-1225[2010]).
Respondent also claims that Family Court erred by admitting into evidence the contents of areport filed with the Child Protective Services hotline alleging that the children had been abusedwhile in foster care. As relevant here, Social Services Law § 422 provides that "[r]eportsmade pursuant to this title . . . shall be confidential and shall only be made availableto . . . a [*3]court, upon a finding that theinformation in the record is necessary for the determination of an issue before the court" (SocialServices Law § 422 [4] [A] [e]). While such a finding was not expressly made by the courtprior to admitting the report, a caseworker had already testified without objection thatrespondent's daughter, when informed of the report, claimed that the allegations of abuse werenot true. The daughter also stated to the caseworker that she believed respondent was responsiblefor filing it. As such, the report, and the circumstances under which it was made, were relevanton the issue as to whether respondent filed it knowing that the allegations were false and, as aresult, she had engaged in conduct that was clearly not in the children's best interests.
Finally, respondent claims that the attorney for the children did not provide them withmeaningful assistance of counsel. We disagree. An attorney for a child must "zealously advocatethe child's position" (22 NYCRR 7.2 [d]) and, if the child is "capable of knowing, voluntary andconsidered judgment," must follow the child's wishes "even if the attorney for the child believesthat what the child wants is not in the child's best interests" (22 NYCRR 7.2 [d] [2]; see Matter of Mark T. v Joyanna U., 64AD3d 1092, 1093-1094 [2009]). On multiple occasions throughout these proceedings, theattorney for the children repeatedly communicated to Family Court that the children wished to bereunited with respondent. She also visited with the children on numerous occasions to discusswith them issues raised during these proceedings, including their ability to visit with theirgrandparents and their father and determine their position as to how these issues should beresolved. In total, the record demonstrates that the children received meaningful representation.
Mercure, J.P., Rose, Lahtinen and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: This petition also chargedrespondent's boyfriend with neglect and resulted in an order of protection being issued on consentbarring him from having any contact with the children until they turned 18.