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Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: KAHLIL S. Erie County Department of Social Services, Petitioner-Respondent; Mamie W.-K., Respondent-Appellant.  (Appeal No. 1.)

Decided: March 27, 2009

PRESENT:  SCUDDER, P.J., HURLBUTT, PERADOTTO, GREEN, AND GORSKI, JJ. David J. Pajak, Alden, for Respondent-Appellant. Joseph T. Jarzembek, Buffalo, for Petitioner-Respondent. David C. Schopp, Law Guardian, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel), for Kahlil S.

We previously modified orders terminating respondent mother's parental rights with respect to each child pursuant to Social Services Law § 384-b(4)(c) by remitting the matters to Family Court for a hearing to determine whether post-termination contact between the mother and her children was in the best interests of the children (Matter of Kahlil S., 35 A.D.3d 1164, 1166, 830 N.Y.S.2d 625, lv. dismissed 8 N.Y.3d 977, 836 N.Y.S.2d 546, 868 N.E.2d 229;  Matter of Terrell Z., 35 A.D.3d 1166, 825 N.Y.S.2d 388).   Upon remittal, the court determined in the order that is the subject of appeal No. 1 that post-termination contact with the mother would interfere with the pending adoption of one of the children and thus was not in his best interests.   In the order that is the subject of appeal No. 2, however, the court granted the mother “reasonable” post-termination visitation with the other child.   Addressing first the order in appeal No. 2, we conclude that appeal No. 2 must be dismissed because the mother is not aggrieved by that part of the order granting her visitation with the child (see generally CPLR 5511;  Matter of Saafir A.M., 28 A.D.3d 1217, 812 N.Y.S.2d 905;  Matter of Jefferson County Dept. of Social Servs. v. Mark L.O., 12 A.D.3d 1037, 785 N.Y.S.2d 216, lv. dismissed 4 N.Y.3d 794, 795 N.Y.S.2d 169, 828 N.E.2d 85).

With respect to the order in appeal No. 1, the mother contends that the court refused to grant her post-termination contact with that child based on the unsworn statements of the caseworkers for petitioner made during a “postdisposition review” from which the mother was excluded.   We reject that contention.   The record establishes that the court's determination that post-termination visitation with the mother was not in the best interests of the child is properly based on evidence presented at the dispositional hearing (see generally Matter of Alyshia M.R., 53 A.D.3d 1060, 1061, 861 N.Y.S.2d 551, lv. denied 11 N.Y.3d 707, 868 N.Y.S.2d 599, 897 N.E.2d 1083), at which the mother was afforded the opportunity to present evidence in support of post-termination visitation with the child and to controvert the evidence against her. Indeed, the mother cross-examined each of petitioner's witnesses with respect to whether her contact with the child would interfere with the adoption process (cf. Matter of Folsom v. Folsom, 262 A.D.2d 875, 692 N.Y.S.2d 529;  see generally Matter of Heintz v. Heintz, 28 A.D.3d 1154, 813 N.Y.S.2d 591).   Finally, the mother's contention concerning visitation between the children is raised for the first time on appeal and thus is not preserved for our review (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.


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