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In re Brandon DD.

State of New York Supreme Court, Appellate Division Third Judicial Department


July 8, 2010

IN THE MATTER OF BRANDON DD., A NEGLECTED CHILD.
CLINTON COUNTY DEPARTMENT OF SOCIAL SERVICES, RESPONDENT;
v.
JESSICA EE., APPELLANT.

MEMORANDUM AND ORDER

Calendar Date: June 9, 2010

Before: Cardona, P.J., Rose, Lahtinen, Kavanagh and Egan Jr., JJ.

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, granted petitioner's application, in a proceeding pursuant to Family Ct Act article 10-A, to extend placement 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 neglected child and placed respondent under petitioner's supervision. Respondent subsequently married a risk level II sex offender (hereinafter the stepfather) and Family Court issued modified orders requiring respondent to keep the child 1,000 feet away from the stepfather. When respondent violated these orders, Family Court issued additional orders which, among other things, placed the child in petitioner's custody and authorized supervised visitation with respondent. We recently upheld the temporary placement of the child with petitioner and the supervised visitation (Matter of Brandon DD., AD3d , 2010 NY Slip Op 04685 [2010]).

In January 2010, Family Court held a permanency hearing to determine if placement of the child with petitioner should be extended for an additional six months. At the conclusion of the hearing, the court ruled that placement should be extended and that supervised visitation should be continued. The court issued an order and an amended order accordingly, as well as an order of protection and an amended order of protection consistent with the aforementioned orders.*fn1 Respondent appeals.

Respondent asserts that Family Court abused its discretion in continuing placement of the child 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 court must consider the physical, mental and emotional well-being of the child and whether his or her best interests are protected by continued placement (see Matter of Owen AA., 64 AD3d 953, 954 [2009]; see also Family Ct Act § 1089 [d]). Also relevant to this determination is whether the parent has demonstrated "that progress has been made to overcome the specific problems which led to the removal of the child" (Matter of Kasja YY., 69 AD3d 1258, 1259 [2010], lv denied 14 NY3d 711 [2010] [internal quotation marks and citations omitted]).

In this case, considerable evidence was presented that respondent participated in recommended mental health counseling, drug testing, educational programming and parenting classes, and that she regularly attended scheduled visitation and family counseling sessions. On the other hand, there was evidence that respondent tested positive for THC at least twice, once shortly before the permanency hearing, and that she continued to cohabit with the stepfather despite 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 to the permanency hearing. Thus, despite evidence that respondent has undertaken meaningful efforts to reunite with her son, given her positive drug test and continued cohabitation with the stepfather, 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 during visitation, we cannot say that Family Court abused its discretion in continuing supervised visitation.

Cardona, P.J., Rose, Lahtinen, Kavanagh and Egan Jr., JJ., concur.

ORDERED that the orders and amended orders are affirmed, without costs.


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