| Matter of Rebecca KK. |
| 2009 NY Slip Op 02497 [61 AD3d 1035] |
| April 2, 2009 |
| Appellate Division, Third Department |
| In the Matter of Rebecca KK., a Child Alleged to be Neglected.Cortland County Department of Social Services, Respondent; Sharon PP., Appellant.(Proceeding No. 1.) In the Matter of Rebecca KK., a Child Alleged to be Severely Abused.Cortland County Department of Social Services, Respondent; Sharon PP., Appellant.(Proceeding No. 2.) |
—[*1] Ingrid Olsen-Tjensvold, Cortland County Department of Social Services, for respondent. Pamela B. Bleiwas, Law Guardian, Ithaca.
Mercure, J. Appeals (1) from an order of the Family Court of Cortland County (Campbell,J.), entered March 5, 2008, which, among other things, granted petitioner's application, inproceeding No. 1 pursuant to Family Ct Act article 10-A, to approve respondent's currentpermanency plan, and (2) from an order of said court, entered March 24, 2008, which, amongother things, in proceeding No. 2 pursuant to Family Ct Act article 10, granted petitioner'smotion for a determination that reasonable efforts to reunify respondent with the child are nolonger required.
The underlying facts are more fully set forth in two prior decisions of this Court affirmingdeterminations that respondent, the subject child's mother, had neglected the child (51 AD3d1086 [2008]), and which continued suspension of respondent's visitation and modified thepermanency plan to place the child for adoption (55 AD3d 984 [2008]). In August 2007, anotherpetition was filed alleging neglect, abuse and severe abuse by respondent. That proceeding wascommenced in response to the child's disclosures that respondent had touched herinappropriately before she had been removed from respondent's home.
Following a fact-finding hearing, Family Court found that the child had been neglected,abused and severely abused by respondent. Subsequently, petitioner moved, pursuant to FamilyCt Act § 1039-b, for a determination that reasonable efforts to reunite the family were nolonger required. Family Court ultimately issued a dispositional order on March 24, 2008,determining that respondent had subjected the child to aggravated circumstances and relievingpetitioner from further reasonable efforts to reunify respondent and the child because such wouldbe contrary to the child's health and safety. Respondent appeals from this order. Meanwhile, thecourt issued an order on March 5, 2008 that, among other things, approved petitioner'sthen-current permanency plan of placement for adoption, and from which respondent alsoappeals.
Respondent first contends that Family Court erred in finding severe abuse—and,hence, the existence of aggravated circumstances—because the child's statements were notsufficiently corroborated. A child's out-of-court statement alleging neglect or abuse" 'may becorroborated by any evidence tending to support its reliability, and a relatively low degree ofcorroborative evidence is sufficient in abuse proceedings' " (Matter of Sasha R., 24 AD3d 902, 903 [2005], quoting Matterof Joshua QQ., 290 AD2d 842, 843 [2002]; accord Matter of Kayla N., 41 AD3d 920, 922 [2007]; seeFamily Ct Act § 1046 [a] [vi]). The finding here was based primarily on the child'sallegations, in two letters to her foster parents, that respondent touched her inappropriately whilebathing her. Corroborative evidence included a caseworker's observation of inappropriate sexualbehavior by respondent during a visit with the child, the testimony of a psychologist whoexamined the child and opined that her behavior was consistent with ongoing abuse byrespondent, and evidence that the child's behavior improved dramatically once contact withrespondent ceased (see Matter ofCaitlyn U., 46 AD3d 1144, 1146 [2007]; Matter of Richard SS., 29 AD3d 1118, 1121 [2006]; Matter ofCecilia PP., 290 AD2d 836, 837-838 [2002]; Matter of Tanya T., 252 AD2d 677,678-679 [1998], lv denied 92 NY2d 812 [1998]). In our view, the child's accusationswere sufficiently corroborated and Family Court's finding of severe abuse was supported byclear and convincing evidence (see Family Ct Act § 1046 [b] [ii]; Matter of Alijah C., 1 NY3d 375,378 n 2 [2004]; Matter of Julia BB.,42 AD3d 208, 216 [2007], lvs denied 9 NY3d 815 [2007]).
Respondent also contends that Family Court's order to terminate reasonable efforts was inerror. We note, however, that counsel for respondent stated at the dispositional hearing that [*2]respondent did not oppose petitioner's motion. In any event,reasonable efforts are no longer required where, as here, the parent subjected the child toaggravated circumstances (see Family Ct Act § 1039-b [b] [1]; Matter ofCecilia PP., 290 AD2d at 838-839).
Finally, we turn to the contention of the Law Guardian that Family Court erred in approvingpetitioner's permanency plan of placement for adoption without consulting the child. Pursuant toFamily Ct Act § 1089 (d), as amended effective December 31, 2007 (see L 2007,ch 327, part B, § 11), Family Court shall determine its findings at the conclusion of apermanency hearing and enter an order of disposition "upon the proof adduced, whichshall include age-appropriate consultation with the child who is the subject of thepermanency hearing" (emphasis added). We agree that the court erred insofar as it did notconsult with the child—who was 14 years old at the time—during the February2008 permanency hearing, particularly in light of the fact that the Law Guardian evidently failedto relate the child's preferences concerning the permanency plan or visitation with respondent(see People v Santi, 3 NY3d234, 242-243 [2004] [in implementing statutes, courts must effectuate the intent of theLegislature and, when the language is unambiguous, accord statutes their plain meaning];People v Finnegan, 85 NY2d 53, 58 [1995], cert denied 516 US 919 [1995][same]; People ex rel. Harris v Sullivan, 74 NY2d 305, 309 [1989] [same]; seealso Sponsor's Mem, Bill Jacket, L 2007, ch 327). The child's position in connection withthis appeal is that she would like to remain with her current foster parents in an alternative livingarrangement and would prefer such over adoption by another family. Furthermore, while thefoster parents are not interested in adopting the child at this time, they have stated that theywould be willing to have the child remain in their home until she completes her education.Notwithstanding this failure to consult with the child, however, we note that Family Court hassince taken the child's wishes into consideration and approved a new permanency plan of bothpermanent alternative living arrangement with an adult resource and adoption. Under thesecircumstances, this issue has now been rendered moot (see Matter of King v Jackson, 52 AD3d 974, 975 [2008]; see also Matter of Haylee RR., 56AD3d 968, 968 [2008]; Matter of Clark v Liska, 262 AD2d 721, 723 [1999]).
We have examined respondent's remaining contentions in connection with the permanencyorder and find them unavailing.
Cardona, P.J., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the orders areaffirmed, without costs.