| Matter of Brandon DD. (Jessica EE.) |
| 2010 NY Slip Op 06033 [75 AD3d 815] |
| July 8, 2010 |
| Appellate Division, Third Department |
| In the Matter of Brandon DD., a Neglected Child. Clinton CountyDepartment of Social Services, Respondent; Jessica EE., Appellant. |
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Appeals (1) from an order and an amended order of the Family Court of Clinton County(Lawliss, J.), entered February 2, 2010 and March 18, 2010, which, among other things, grantedpetitioner's application, in a proceeding pursuant to Family Ct Act article 10-A, to extendplacement of respondent's child, and (2) from an order and an amended order of said court,entered February 2, 2010 and March 18, 2010, which issued orders of protection.
In January 2009, Family Court adjudicated respondent's son (born in 1998) to be a neglectedchild and placed respondent under petitioner's supervision. Respondent subsequently married arisk level two sex offender (hereinafter the stepfather) and Family Court issued modified ordersrequiring respondent to keep the child 1,000 feet away from the stepfather. When respondentviolated these orders, Family Court issued additional orders which, among other things, placedthe child in petitioner's custody and authorized supervised visitation with respondent. Werecently upheld the temporary placement of the child with petitioner and the supervisedvisitation (Matter of Brandon DD. [Jessica EE.], 74 AD3d 1435 [2010]).[*2]
In January 2010, Family Court held a permanencyhearing to determine if placement of the child with petitioner should be extended for anadditional six months. At the conclusion of the hearing, the court ruled that placement should beextended and that supervised visitation should be continued. The court issued an order and anamended order accordingly, as well as an order of protection and an amended order of protectionconsistent with the aforementioned orders.[FN*]Respondent appeals.
Respondent asserts that Family Court abused its discretion in continuing placement of thechild with petitioner and, at the very least, should have allowed her unsupervised visitation.Initially, we note that in determining whether the extension of placement is appropriate, the courtmust consider the physical, mental and emotional well-being of the child and whether his or herbest interests are protected by continued placement (see Matter of Owen AA., 64 AD3d 953, 954 [2009]; seealso Family Ct Act § 1089 [d]). Also relevant to this determination is whether theparent has demonstrated "that progress has been made to overcome the specific problems whichled to the removal of the child" (Matterof Kasja YY. [Karin B.], 69 AD3d 1258, 1259 [2010] [citations omitted], lvdenied 14 NY3d 711 [2010]).
In this case, considerable evidence was presented that respondent participated inrecommended mental health counseling, drug testing, educational programming and parentingclasses, and that she regularly attended scheduled visitation and family counseling sessions. Onthe other hand, there was evidence that respondent tested positive for THC at least twice, onceshortly before the permanency hearing, and that she continued to cohabit with the stepfatherdespite her claims that he had his own apartment and that they were divorcing. Notably,respondent herself admitted that the stepfather had, in fact, stayed at her residence just prior tothe permanency hearing. Thus, despite evidence that respondent has undertaken meaningfulefforts to reunite with her son, given her positive drug test and continued cohabitation with thestepfather, we find that the extension of placement was in the child's best interests. Furthermore,given testimony indicating that respondent did not always act appropriately with her son duringvisitation, we cannot say that Family Court abused its discretion in continuing supervisedvisitation.
Cardona, P.J., Rose, Lahtinen, Kavanagh and Egan Jr., JJ., concur. Ordered that the ordersand amended orders are affirmed, without costs.
Footnote *: The amended orders wereissued to remedy an inaccuracy in the original orders regarding the date of the permanencyhearing.