Opinion
2014-04-3
In the Matter of BRANDON WW. and Another, Alleged to be Neglected Children. Delaware County Department of Social Services, Respondent; Kimberley WW., Appellant.
Teresa C. Mulliken, Harpersfield, for appellant. D. Jeremy Rase, Delaware County Department of Social Services, Delhi, for respondent.
Teresa C. Mulliken, Harpersfield, for appellant. D. Jeremy Rase, Delaware County Department of Social Services, Delhi, for respondent.
Larisa Obolensky, Delhi, attorney for the children.
Before: PETERS, P.J., GARRY, ROSE and EGAN JR., JJ.
EGAN JR., J.
Appeal from an order of the Family Court of Delaware County (Becker, J.), entered January 14, 2013, which, in a proceeding pursuant to Family Ct. Act article 10, granted petitioner's motion to continue the temporary removal of the subject children from respondent's custody.
Petitioner commenced this proceeding in December 2012 alleging that respondent's children, Brandon (born in 2002) and April (born in 2009), were neglected—specifically, that respondent allowed both children to reside with a risk level III sex offender and that April had been sexually abused. In conjunction therewith, the children were removed from respondent's care pursuant to Family Ct. Act § 1024. Following a hearing, petitioner's application to continue the removal of respondent's childrenwas granted ( seeFamily Ct. Act § 1027), and respondent appealed.
The children's placement with respondent thereafter was extended twice—most recently following a permanency hearing held in November 2013—based upon, among other things, respondent's ongoing refusal to acknowledge that April may have been sexually abused.
During the pendency of this appeal, a fact-finding hearing was held on the underlying neglect petition and, by order entered January 10, 2014, Family Court adjudicated the subject children to be neglected, finding, among other things, that April was sexually abused and that respondent permitted April and Brandon “to be in the company of known registered sex offenders.” In light of such adjudication, we deem respondent's appeal from the temporary order of removal to be moot ( see Matter of Mary YY. [Albert YY.], 98 A.D.3d 1198, 1198, 950 N.Y.S.2d 918 [2012];cf. Matter of Gabriella UU. [Kelly VV.], 83 A.D.3d 1306, 1307, 920 N.Y.S.2d 746 [2011];Matter of Shalyse WW., 63 A.D.3d 1193, 1196–1197, 879 N.Y.S.2d 644 [2009],lv. denied13 N.Y.3d 704, 2009 WL 2871114 [2009];Matter of John S., 26 A.D.3d 870, 870, 810 N.Y.S.2d 754 [2006] )—notwithstanding the fact that a final order of disposition has yet to be rendered ( see generally Family Ct. Act § 1051[a], [d] ). Further, “inasmuch as a temporary order [of removal] is not a finding of wrongdoing, the exception to the mootness doctrine does not apply” ( Matter of Cali L., 61 A.D.3d 1131, 1133, 876 N.Y.S.2d 557 [2009];see Matter of Angel C. [Lynn H.], 103 A.D.3d 1246, 1247, 958 N.Y.S.2d 921 [2013];Matter of Skyler R. [Kristy R.], 85 A.D.3d 1238, 1238, 923 N.Y.S.2d 921 [2011] ).
A dispositional hearing was scheduled for March 31, 2014.
Unfortunately, counsel for respondent did not request a preference in the hearing of this matter ( seeCPLR 5521[a] ), which would have afforded this Court the opportunity to entertain the appeal prior to the completion of the fact-finding hearing.
ORDERED that the appeal is dismissed, as moot, without costs.