| Matter of Kenneth QQ. (Jodi QQ.) |
| 2010 NY Slip Op 07639 [77 AD3d 1223] |
| October 28, 2010 |
| Appellate Division, Third Department |
| In the Matter of Kenneth QQ. and Others, Neglected Children.Delaware County Department of Social Services, Respondent; Jodi QQ.,Appellant. |
—[*1] Richard B. Spinney, County Attorney, Delhi (Amy B. Merklen of counsel), for respondent. Rosemarie Richards, Gilvertsville, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of Delaware County (Lambert, J.),entered September 10, 2009, which, in a proceeding pursuant to Family Ct Act article 10, grantedpetitioner's motion to modify a prior order of disposition.
In April 2009, respondent consented, without admission, to a determination that sheneglected her three sons (born in 1991, 1993 and 1995) on the basis of their homelessness, andSchoharie County Family Court (James, J.) continued custody with respondent under thesupervision of petitioner for one year. Family Court also ordered that respondent comply withcertain terms and conditions including, among others, that she cooperate with petitioner and thechildren receive appropriate psychiatric treatment. In August 2009, petitioner moved, pursuant toFamily Ct Act § 1061, to modify the dispositional order, alleging that respondent was notcomplying with its terms and conditions with respect to her youngest son (hereinafter the child),who was diagnosed with bipolar disorder, oppositional defiant disorder and attention deficit[*2]disorder. Following a transfer of the proceeding fromSchoharie County to Delaware County and an ensuing fact-finding hearing, Family Court(Lambert, J.) modified the dispositional order and placed the child in the care of petitioner on thebasis that respondent failed to follow through with petitioner's recommendations, repeatedlycanceled meetings, refused to take responsibility for the child's actions and his lack ofsupervision, and failed to meet his mental health needs. Respondent now appeals.
As an initial matter, we reject petitioner's argument that respondent's appeal is moot because,at an April 2010 permanency hearing, respondent consented to continued placement of the childin foster care. Because an order placing a child in foster care may affect a parent's status orparental rights in potential future proceedings, respondent's appeal from the September 2009order is not moot (see Matter ofBrandon DD. [Jessica EE.], 74 AD3d 1435, 1437 n 2 [2010]).
Turning to the merits of respondent's appeal, pursuant to Family Ct Act § 1061, adispositional order may be modified when there exists good cause to do so (see FamilyCt Act § 1061; Matter of Carrie F.v David PP., 34 AD3d 1108, 1109 [2006]; Matter of Amber VV., 19 AD3d 767, 769 [2005]; Matter ofAngelina AA., 222 AD2d 967, 969 [1995]). This section " 'expresses the strong [l]egislativepolicy in favor of continuing Family Court jurisdiction over the child and family so that the courtcan do what is necessary in the furtherance of the child's welfare' " (Matter of AngelinaAA., 222 AD2d at 968-969, quoting Besharov, Practice Commentary, McKinney's ConsLaws of NY, Book 29A, Family Ct Act § 1061, at 461). As with an initial order, themodified order "must reflect a resolution consistent with the best interests of the children afterconsideration of all relevant facts and circumstances, and must be supported by a sound andsubstantial basis in the record" (Matterof Elijah Q., 36 AD3d 974, 976 [2007] [internal quotation marks and citation omitted],lv denied 8 NY3d 809 [2007]; accord Matter of Brandon DD. [Jessica EE.], 74AD3d at 1437).
The evidence at the dispositional hearing established that respondent failed to attend twoscheduled meetings with petitioner and then failed to contact them as promised to reschedule themeetings. In July 2009, respondent left the child under his aunt's supervision while she went toLong Island to receive medical treatment and attend a court appearance. While she was away, thechild was involved in an incident at a neighborhood pool with an 11-year-old girl that escalatedto his using expletives directed to the girl's father and threatening to assault the girl. After thechild motioned that he was about to strike the girl, her father restrained him. The child then ranaway and returned with, in succession, a golf club, baseball bat and knife, and was each timedisarmed by adults. The child then threw a rock at the father's car and, while awaiting the arrivalof police, threatened to kill the 11-year-old girl and rape her sister. When a caseworker respondedto the family home in response to reports of this incident and began a discussion with the childand his aunt of a possible safety plan, the child stated that he would not agree to it. When thecaseworker then spoke with respondent by telephone in Long Island, the child began to scream,whereupon respondent informed the caseworker to tell him to "shut the f. . . up."The child then became verbally abusive to the caseworker, started to come at her and had to berestrained. During a subsequent meeting with caseworkers in August, the child hurled anexpletive at the caseworkers present and stormed out of the meeting, at which point respondentannounced the meeting was over and left herself. Under these circumstances, and accordingdeference to Family Court's credibility determinations (see Matter of Stefani C., 61 AD3d 681, 681 [2009]; Matter of Jolyssa EE., 28 AD3d824, 825 n [2006]), we find that temporary placement with petitioner was in the child's bestinterest.[*3]
Mercure, J.P., Malone Jr., McCarthy and Garry, JJ.,concur. Ordered that the order is affirmed, without costs.