| Matter of Brandon DD. (Jessica EE.) |
| 2010 NY Slip Op 04685 [74 AD3d 1435] |
| June 3, 2010 |
| Appellate Division, Third Department |
| In the Matter of Brandon DD., a Neglected Child. Clinton CountyDepartment of Social Services, Respondent; Jessica EE., Appellant. |
—[*1] Christine G. Peters, Clinton County Department of Social Services, Plattsburgh, forrespondent. Reginald H. Bedell, Elizabeth, attorney for the child.
Mercure, J. Appeals (1) from two orders of the Family Court of Clinton County (Lawliss, J.),entered August 27, 2009, which, among other things, granted petitioner's application, in aproceeding pursuant to Family Ct Act article 10, to find respondent in willful violation of anorder of disposition, and issued second modified orders of disposition and protection, and (2)from an order of said court, entered September 28, 2009, which granted a motion by the attorneyfor the child to further modify the second order of disposition.
Upon respondent's admissions and consent, Family Court adjudicated her son (born in 1998)to be a neglected child in January 2009 and placed respondent under petitioner's supervision.Thereafter, the attorney for the child discovered that respondent had become engagedto—and ultimately married—a risk level two sex offender (hereinafter thestepfather), whose conditions of supervision include a prohibition on contact with minors. As aresult, Family Court issued modified orders requiring respondent to ensure that the stepfather didnot come within 1,000 feet of the child.[*2]
Petitioner commenced this proceeding alleging thatrespondent willfully violated the modified orders by allowing the stepfather to be present in thehome with the child. In that regard, a caseworker testified that she went to respondent's homewith a state trooper after receiving a report that the stepfather was at the home with the child.Although respondent denied that the child was in the home, a search performed at respondent'sinvitation revealed the child to be hiding, fully clothed, in the shower. Respondent called thechild by a different name, stated—incorrectly—that he was a friend's nephew anddirected the child not to cooperate with the caseworker or the state trooper. Respondent admittedthat the allegations in the petition were true during the fact-finding hearing.[FN1]In addition, another person, who was present in respondent's home at the time, testified that hesigned a statement that respondent prepared in which he falsely swore that the child found in herhome was not respondent's son.
Family Court found that respondent had willfully violated the orders, imposed a sanction ofthree days in jail and issued a second modified order of protection and a second modified orderof disposition (both entered August 29, 2009) that, as relevant here, placed the child inpetitioner's custody and authorized supervised visitation with respondent. A third modified orderof disposition, entered September 28, 2009, was subsequently entered modifying the secondorder only to the extent of permitting respondent and the child to exchange a journal. Petitionerappeals and we now affirm the third modified order of disposition.[FN2]
Respondent challenges Family Court's determination placing the child in petitioner's custodyas "an extreme overreaction" and against the child's best interests. A " 'dispositional order mustreflect a resolution consistent with the best interests of the children after consideration of allrelevant facts and circumstances, and must be supported by a sound and substantial basis in therecord' " (Matter of Elijah Q., 36AD3d 974, 976 [2007], lv denied 8 NY3d 809 [2007], quoting Matter of Alaina E., 33 AD3d1084, 1087 [2006]; see Matter of Aidan D., 58 AD3d 906, [*3]908 [2009]; Matter of Isaiah F., 55 AD3d 1004, 1006-1007 [2008]). As FamilyCourt noted, the evidence at the dispositional hearing established that respondent knowinglyallowed the child to be in the presence of the stepfather despite orders to the contrary, wasfundamentally unwilling to protect the child from the stepfather, and engaged in an elaboratescheme to deceive the authorities, which included encouraging the child to lie about his identityand attempted solicitation of perjury. Under these circumstances, Family Court properlydetermined that temporary placement with petitioner was in the child's best interests (Matterof Elijah Q., 36 AD3d at 976; Matter of Alaina E., 33 AD3d at 1087).
Cardona, P.J., Peters, Kavanagh and Garry, JJ., concur. Ordered that the order enteredSeptember 28, 2009 is affirmed, without costs. Ordered that the appeals from the orders enteredAugust 27, 2009 are dismissed, as moot, without costs.
Footnote 1: Respondent later recanted heradmission that she had encouraged the child to be deceitful.
Footnote 2: Respondent also appealed fromthe second modified order of protection and the second modified order of disposition. Theseappeals have been rendered moot inasmuch as the order of protection expired by its own terms inFebruary 2010, and the second modified order of disposition was superceded by the thirdmodified order of disposition (seeMatter of Destiny HH., 63 AD3d 1230, 1231 [2009], lv denied 13 NY3d 706[2009]). Although Family Court issued a subsequent permanency hearing order in February 2010and a corrected order in March 2010 that extended the child's placement, respondent's appealfrom the third dispositional order is not moot inasmuch as an order placing a child in foster caremay, in future proceedings, affect a parent's status or parental rights (see Family Ct Act§ 1055 [b] [i] [D]; § 1089 [d] [2] [vii] [D]; Matter of Jeffrey D., 233 AD2d668, 669 [1996]; Matter of Matthew C., 227 AD2d 679, 680 [1996]). To the extent thatMatter of Chelsea M. (61 AD3d1030, 1032 [2009]) held to the contrary, that case should no longer be followed.