| Matter of Owen AA. |
| 2009 NY Slip Op 05719 [64 AD3d 953] |
| July 9, 2009 |
| Appellate Division, Third Department |
| In the Matter of Owen AA., a Child Alleged to be Neglected.Cortland County Department of Social Services, Respondent; Angela AA.,Appellant. |
—[*1] Stacy L. Banewicz, Cortland County Department of Social Services, Cortland, forrespondent. Randolph V. Kruman, Law Guardian, Cortland.
Stein, J. Appeal from an order of the Family Court of Cortland County (Ames, J.), enteredOctober 10, 2008, which, in a proceeding pursuant to Family Ct Act article 10, deniedrespondent's motion to terminate placement of the subject child.
Respondent is the mother of a child (born in 2008) who was removed from her care bypetitioner within days of his birth. In April 2008, respondent consented to a finding that she hadneglected the child and to his continued placement with petitioner. At a subsequent permanencyhearing, Family Court again continued the child's placement, as well as the order placingrespondent under the supervision of petitioner and mandating compliance with certainenumerated conditions. Thereafter, in July 2008, following the denial of her request that thechild be returned to her, respondent moved by order to show cause to terminate the child'splacement, contending that she had complied with or completed all of the conditions imposed byFamily Court. At the conclusion of a hearing held over two days in September 2008, FamilyCourt denied respondent's motion. Respondent now appeals and we affirm.[*2]
Respondent's sole argument on appeal is that, since shesuccessfully complied with all of the conditions imposed upon her pursuant to the permanencyorder, Family Court should have terminated the child's placement. A motion pursuant to FamilyCt Act § 1062 must be denied if, following a hearing, it is determined that continuedplacement serves the purposes of Family Ct Act article 10—namely, "to help protectchildren from injury or mistreatment and to help safeguard their physical, mental, and emotionalwell-being" (Family Ct Act § 1011; see Family Ct Act § 1065 [a];Matter of Frederick MM., 201 AD2d 842, 843 [1994], lv denied 83 NY2d 760[1994]). Termination of a child's placement pursuant to Family Ct Act § 1062 is notcontingent upon nor compelled by the simple completion of a checklist (see Matter ofCatherine MM. v Ulster County Dept. of Social Servs., 293 AD2d 778, 779 [2002]). Instead,the physical, mental and emotional well-being of the child is the paramount concern and theparent must establish that the return of the child protects these interests (see Family CtAct § 1065 [a]; Matter of Frederick MM., 201 AD2d at 843). The determinationwhether to terminate or continue placement rests within Family Court's discretion and should notbe disturbed absent an abuse thereof (see Family Ct Act § 1065; Matter ofFrederick MM., 201 AD2d at 843).
Here, the unrefuted testimony established that respondent has substantially complied with orcompleted all of the directives contained within Family Court's prior permanency order and thatshe has sought out and obtained services beyond those mandated by Family Court with an eyetoward improving her parenting and other skills in order to have her son returned to her. Indeed,respondent's achievements were largely conceded by petitioner at the hearing. Nevertheless,other evidence militated against terminating the child's placement. Respondent had yet to havean unsupervised visit with her son and respondent's parent educator testified that she stillrequired direction to properly address the child's basic needs. Furthermore, many of the positivedevelopments in respondent's life that would support a return of the child to her were too recentin time to be relied upon. For example, although respondent had an apartment at the time of thehearing, she had been evicted from her previous apartment and was homeless for a period of timeonly a few months earlier. Similarly, while respondent had begun a full-time job the week beforethe hearing, she had been fired from her previous two jobs within months of theircommencement. Additionally, as noted by Family Court, there was evidence of othercircumstances that raised concerns regarding the adequacy of respondent's resources andparenting skills should her son's placement be terminated, particularly in view of her limitedcognitive abilities and lack of familial support.
According due deference to Family Court's findings of fact—which are amplysupported by the record—we cannot conclude that Family Court abused its discretion indetermining that, under the circumstances existing at the time of the hearing, termination of thechild's placement would not best safeguard his physical, mental and emotional well-being.Therefore, we decline to disturb the determination to continue the child's placement (seeMatter of Frederick MM., 201 AD2d at 843).
Cardona, P.J., Mercure, Lahtinen and Malone Jr., JJ., concur. Ordered that the order isaffirmed, without costs.