IN THE MATTER OF EMILY W., EVAN W. AND KAYLEE W. ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; MICHAEL S., RESPONDENT, AND REBECCA S., RESPONDENT-APPELLANT. (APPEAL NO. 1.)
J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT.
CREIGHTON, BUFFALO, FOR PETITIONER-RESPONDENT.
A. TUCKER, ATTORNEY FOR THE CHILDREN, BUFFALO.
PRESENT: CENTRA, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN,
from an order of the Family Court, Erie County (Sharon M.
LoVallo, J.), entered November 17, 2014. The order denied the
motion of respondent Rebecca S. for an order requiring
petitioner to return the subject children to her.
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
Respondent mother appeals from four orders concerning the
five subject children entered in proceedings pursuant to
Family Court Act article 10-A. In appeal No. 1, the mother
appeals from an order, entered after an evidentiary hearing,
in which Family Court denied without prejudice her motion
seeking the return to her custody of three of the children,
i.e., Emily W., Evan W., and Kaylee W. In appeal No. 2, the
mother appeals, as limited by her brief, from so much of an
order, entered after a hearing, in which the court extended
placement of Kaylee W. with her biological father, a
nonparty. In appeal Nos. 3 and 4, the mother appeals, as
limited by her brief, from so much of each order, entered
after a hearing, in which the court extended the placement of
Ava W. and Michael S., Jr. We affirm the order in each
initial matter, we agree with the mother that her appeals are
not moot. In denying the mother's motion to terminate
placement or in extending placement, the court made a new
finding in each appeal that the mother had failed to remedy
the issues that had led to the initial finding of neglect,
and we conclude that the new finding in each appeal may have
enduring consequences for the parties (see Matter of
Donegan v Torres, 126 A.D.3d 1357, 1358, lv denied 26
N.Y.3d 905). Thus, the mother's appeals from the orders
in appeal Nos. 1 through 4 are not moot.
to petitioner's contentions in appeal No. 2 with respect
to Kaylee W., there is no indication in the record that the
mother consented to the subsequent Family Court Act article 6
custody order. Contrary to the contention of the Attorneys
for the Children in appeal Nos. 2 through 4, whether the
order of fact-finding and disposition has expired is
immaterial inasmuch as the permanency hearing orders on
appeal have superseded that order (see Matter of Jacelyn TT.
[Tonia TT.-Carlton TT.], 80 A.D.3d 1119, 1120; Matter of
Destiny HH., 63 A.D.3d 1230, 1231, lv denied 13 N.Y.3d
to the merits, with respect to appeal No. 1, a motion to
terminate a placement "must be denied if, following a
hearing, it is determined that continued placement serves the
purposes of Family [Court] Act article 10 - namely, to help
protect children from injury or mistreatment and to help
safeguard their physical, mental, and emotional
well-being' " (Matter of Owen AA., 64 A.D.3d 953,
954, quoting § 1011; see § 1065 [a]). We conclude
that the mother failed to carry her burden of proving that it
would be in her children's best interests to return them
to her custody. The mother has maintained regular contact
with the respondent father of Michael S., Jr. (hereafter,
father), and it appears from the record that such contact has
only reinforced and continued the tumultuous relationship
that gave rise to the domestic violence underlying the
neglect proceeding. Furthermore, the mother has prolonged the
relationship with the father even though one of her children
now seeks counseling owing to the emotional trauma it caused,
and in spite of the father's failure to complete any of
the items on his plan for services. "[A]lthough [the
mother has] completed certain counseling and parenting
services, the record establishes that no progress has been
made to overcome the specific problems which led to the
removal of the child[ren]" (Matter of Carson W. [Jamie
G.], 128 A.D.3d 1501, 1501, lv dismissed 26 N.Y.3d 976');">26 N.Y.3d 976
[internal quotation marks omitted]; see also Owen AA., 64
A.D.3d at 954-955). Thus, "we find no basis to disturb
[the court]'s conclusion that the child[ren]'s best
interests warrant [their] continued placement"
(Matter of Kasja YY. [Karin B.], 69 A.D.3d 1258,
1259, lv denied 14 N.Y.3d 711). We have considered the
mother's remaining contentions in appeal No. 1 and
conclude that they are without merit.
with respect to appeal Nos. 2 through 4, we reject the
mother's contention that the court abused its discretion
in extending placement for Kaylee W., Ava W., and Michael S.,
Jr. "In order to establish the need for continued
placement, the agency must establish both that such continued
placement is in the child's best interests and that the
parents are presently unable to care for the child"
(Matter of Vanessa Z.,307 A.D.2d 755, 755). Here,
petitioner established at the hearing that the mother's
regular interactions with the father indicate that her
completion of domestic violence training was a formality that
did not result in any meaningful change to her lifestyle
(see Matter of Catherine MM. v Ulster County Dept. of
Social Servs., 293 A.D.2d 778, 779). Indeed, the mother
admitted to having consented to the modification of an order
of protection in her favor and against the father so that
they could "be together" (cf. Matter of
Sunshine A.Y.,88 A.D.2d 662, 662). "The fact that
[the mother] presented conflicting evidence to the court does
not require a different result" (Matter of Kerensa D.
[appeal No. 2], 278 A.D.2d 878, 879, lv denied 96 N.Y.2d
707). We ...