Opinion
2018–09769 Docket Nos. N–8834–16, N–8835–16
06-19-2019
In the MATTER OF PETER T. (Anonymous), Jr. Westchester County Department of Social Services, petitioner-Respondent; v. Shay S.P. (Anonymous), etc., Appellant, et al., Respondent.
George E. Reed, Jr., White Plains, NY, for appellant. John M. Nonna, County Attorney, White Plains, N.Y. (Stacey Dolgin–Kmetz, Linda M. Trentacoste, Gregory G. Meyer, and David Chen of counsel), for petitioner–respondent. Gloria M. Marchetti–Bruck, White Plains, NY, attorney for the child.
George E. Reed, Jr., White Plains, NY, for appellant.
John M. Nonna, County Attorney, White Plains, N.Y. (Stacey Dolgin–Kmetz, Linda M. Trentacoste, Gregory G. Meyer, and David Chen of counsel), for petitioner–respondent.
Gloria M. Marchetti–Bruck, White Plains, NY, attorney for the child.
ALAN D. SCHEINKMAN, P.J., LEONARD B. AUSTIN, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDERIn a proceeding pursuant to Family Court Act article 10, the mother appeals from a permanency hearing order of the Family Court, Westchester County (Maria–Alana Recine, Ct. Atty. Ref.), entered August 1, 2018. The order, insofar as appealed from, after a hearing, continued the subject child's placement in the custody of the petitioner until the completion of the next permanency hearing and changed the permanency goal from reunification to placement for adoption.
ORDERED that the appeal from so much of the permanency hearing order as continued the subject child's placement in the custody of the petitioner is dismissed as academic, without costs or disbursements; and it is further,
ORDERED that the permanency hearing order is affirmed insofar as reviewed, without costs or disbursements.The mother's appeal from so much of the permanency hearing order as continued the subject child's placement in the custody of the petitioner until the completion of the next permanency hearing must be dismissed as academic, as that portion of the order has expired (see Matter of Victoria B. [Jonathan M.], 164 A.D.3d 578, 580, 82 N.Y.S.3d 504 ; Matter of Jayline J. [Jarren J.], 156 A.D.3d 701, 64 N.Y.S.3d 916 ; Matter of Elizabeth C. [Omar C.], 156 A.D.3d 193, 198–199, 66 N.Y.S.3d 300 ; Matter of Agam B. [Janna W.], 143 A.D.3d 702, 702–703, 38 N.Y.S.3d 591 ; Matter of Grayson J. [Sharon H.], 119 A.D.3d 575, 576, 989 N.Y.S.2d 95 ). However, the portion of the order which changed the permanency goal from reunification to adoption is not academic (see Matter of Victoria B. [Jonathan M.], 164 A.D.3d at 580–581, 82 N.Y.S.3d 504 ).
" ‘At a permanency hearing, the petitioner bears the burden of establishing the appropriateness of a permanency goal, or a goal change, by a preponderance of the evidence’ " (Matter of Victoria B. [Jonathan M.], 164 A.D.3d at 581, 82 N.Y.S.3d 504, quoting Matter of Cristella B., 65 A.D.3d 1037, 1039, 884 N.Y.S.2d 773 ). The Family Court's determinations following a permanency hearing "must be made ‘in accordance with the best interests and safety of the child, including whether the child would be at risk of abuse or neglect if returned to the parent’ " ( Matter of Jamie J. [Michelle E.C.], 30 N.Y.3d 275, 283, 67 N.Y.S.3d 78, 89 N.E.3d 468, quoting Family Ct. Act § 1089[d] ; see Matter of Victoria B. [Jonathan M.], 164 A.D.3d at 581, 82 N.Y.S.3d 504 ).
Here, we agree with the Family Court's determination that the subject child would be in danger if he were returned to the mother (see Matter of Peter T., Jr. [Shay S. P.], 173 A.D.3d 1043, ––– N.Y.S.3d ––––, 2019 WL 2519456 [Appellate Division Docket No. 2017–11931 ; decided herewith]; Matter of Jazmine P. [Shay S. P.-T.], 173 A.D.3d 1033, 100 N.Y.S.3d 570, 2019 WL 2518701 [Appellate Division Docket No. 2018–03841 ; decided herewith] ). Further, the child had been in foster care for almost two years after his removal from the mother's custody at five months of age. The record demonstrates that although the petitioner provided appropriate services to the mother to support the original goal of reunification, the mother was unable to benefit from those services, and reunification was not a viable goal. Accordingly, we agree with the Family Court's determination to change the permanency goal from reunification to placement for adoption (see Matter of Victoria B. [Jonathan M.], 164 A.D.3d at 581–582, 82 N.Y.S.3d 504 ; Matter of Angela N.L. [Ying L.], 153 A.D.3d 1408, 1411–1412, 62 N.Y.S.3d 421 ; Matter of Cristella B., 65 A.D.3d at 1039–1040, 884 N.Y.S.2d 773 ).
SCHEINKMAN, P.J., AUSTIN, COHEN and HINDS–RADIX, JJ., concur.