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

IN RE: JONATHON NN., Alleged to be a Permanently Neglected Child. Chemung County Department of Social Services, Respondent; Michelle OO., Appellant. (And Two Other Related Proceedings.).

Decided: March 31, 2011

Before:  LAHTINEN, J.P., KAVANAGH, McCARTHY and GARRY, JJ. Abbie Goldbas, Utica, for appellant. David Kagle, Chemung County Department of Social Services, Elmira, for respondent. Allen E. Stone, Vestal, attorney for the child.

Appeals (1) from an order of the Family Court of Chemung County (Brockway, J.), entered April 21, 2010, which, among other things, granted petitioner's application, in a proceeding pursuant to Social Services Law § 384–b, to adjudicate the subject child to be permanently neglected, and (2) from an order of said court, entered July 21, 2010, which granted petitioner's motions to revoke a suspended judgment and terminate respondent's parental rights.

Respondent is the mother of a son (born in 2006).   Petitioner filed a neglect petition against respondent in 2008 and, after respondent consented to an adjudication of neglect, an order of disposition was issued that imposed various terms and conditions upon her.1  The child entered petitioner's custody in October 2008.   As relevant here, petitioner filed a permanent neglect petition against respondent in 2009, asserting that she had failed to adequately plan for the child's future.   Family Court conducted a hearing and found that respondent had permanently neglected the child, following which she stipulated to the imposition of a four-month suspended judgment subject to the terms imposed by the 2008 order.   Respondent appeals from the ensuing order.   Petitioner then moved to revoke the suspended judgment due to respondent's continued failure to comply with the terms of the 2008 order.   After a hearing, Family Court did so and terminated respondent's parental rights, and she appeals from that order as well.

Appellate counsel for respondent seeks to be relieved of her assignment, arguing that no nonfrivolous issues exist that can be raised on appeal.   Upon our review of the record, we disagree and find issues of arguable merit, including the sufficiency of the evidence supporting Family Court's finding that respondent had permanently neglected the child (see Matter of Victorious LL. [Jonathan LL.], 74 A.D.3d 1591, 1591–1592, 903 N.Y.S.2d 594 [2010];  Matter of Marchand v. Nazzaro, 48 A.D.3d 1007, 851 N.Y.S.2d 894 [2008] ).   Counsel's request is accordingly granted, and new appellate counsel will be assigned to address that issue and any other nonfrivolous issues that the record may disclose.

ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.


1.   An adjudication of neglect was also made with regard to the child's father, who subsequently surrendered his parental rights.



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