Opinion
CAF 17–00472 465
06-08-2018
IN the MATTER OF CAIDEN G. Onondaga County Department of Children and Family Services, Petitioner–Respondent; Walter G., Respondent–Appellant, and Monique (W.)G., Respondent.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT–APPELLANT. ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (CATHERINE Z. GILMORE OF COUNSEL), FOR PETITIONER–RESPONDENT. SARA E. LOWENGARD, SYRACUSE, ATTORNEY FOR THE CHILD.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT–APPELLANT.
ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (CATHERINE Z. GILMORE OF COUNSEL), FOR PETITIONER–RESPONDENT.
SARA E. LOWENGARD, SYRACUSE, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., CARNI, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Appeal from an order of the Family Court, Onondaga County ( Michele Pirro Bailey, J.), entered February 10, 2017 in a proceeding pursuant to Family Court Act article 10. The order, inter alia, determined that respondent neglected the subject child.
It is hereby ORDERED that said appeal insofar as it concerns the finding of neglect is unanimously dismissed and the order is affirmed without costs.
Memorandum: Petitioner, Onondaga County Department of Children and Family Services (DCFS), commenced this neglect proceeding pursuant to Family Court Act article 10 alleging, inter alia, that respondent father neglected the subject child by failing to protect the child after the child disclosed that he had been sexually abused by the paternal grandfather. DCFS alleged in the amended petition that the father failed to bring the child to two scheduled appointments at a child advocacy center to be interviewed; that, despite having been directed by police detectives and DCFS staff to ensure that the child had no contact with the grandfather while the investigation was pending, the father allowed the child to stay at the grandfather's house for two days; and that the child was found sleeping in the grandfather's bed. DCFS also alleged that the father had engaged in acts of domestic violence in the presence of the child. The father consented to the temporary removal of the child to the custody of DCFS, which placed the child in foster care, and subsequently entered an admission of neglect. Family Court conducted a dispositional and permanency hearing, and determined, inter alia, that the placement of the child in the custody of DCFS and foster care should continue until the next permanency hearing, approximately six months later.
Initially, we note that the father's challenge to the underlying finding of neglect is not reviewable on appeal because it was premised on his admission of neglect and thereby made in an order entered on the consent of the father (see Matter of Martha S. [Linda M.S.], 126 A.D.3d 1496, 1497, 6 N.Y.S.3d 373 [4th Dept. 2015], lv dismissed in part and denied in part 26 N.Y.3d 941, 17 N.Y.S.3d 58, 38 N.E.3d 800 [2015] ). The father never moved to vacate the finding of neglect or to withdraw his consent to the order, and thus his challenge to the factual sufficiency of his admission is not properly before us (see id. ; see also Family Ct Act § 1051[f] ). We therefore dismiss the appeal to that extent. We note, in any event, that the father waived his right to appeal with respect to fact-finding.
We reject the father's further contention that the court erred in continuing the child's placement when the child "could have been returned home safely with an [o]rder of [p]rotection." The determination whether to terminate or to continue a placement rests within the discretion of the court and should not be disturbed absent an improvident exercise of discretion (see generally Family Ct Act § 1065 [a]; Matter of Latisha C. [Wanda C.], 101 A.D.3d 1113, 1115, 956 N.Y.S.2d 194 [2d Dept. 2012] ). Although the evidence at the hearing establishes that the father received sexual abuse education and counseling, and that he completed domestic violence classes, it further establishes that he has made little progress in "overcom[ing] the specific problems which led to the removal of the child" ( Matter of Carson W. [Jamie G.], 128 A.D.3d 1501, 1501, 8 N.Y.S.3d 828 [4th Dept. 2015], lv dismissed 26 N.Y.3d 976, 18 N.Y.S.3d 588, 40 N.E.3d 565 [2015] [internal quotation marks omitted] ). We therefore conclude that the court's determination is supported by the record, and we see no need to disturb it (see Matter of Lylly M.G. [Theodore T.], 121 A.D.3d 1586, 1587–1588, 992 N.Y.S.2d 834 [4th Dept. 2014], lv denied 24 N.Y.3d 913, 2015 WL 145015 [2015] [internal quotation marks omitted] ).
We have considered the father's remaining contentions and conclude that they are without merit.