Del. Cnty. Dep't of Soc. Servs. v. Christopher HH. (In re Carmine GG)

• Decision Date: 03 July 2019
• Docket Number: 526986
• Parties: In the MATTER OF CARMINE GG., Alleged to be a Neglected Child. Delaware County Department of Social Services, Respondent; v. Christopher HH., Appellant.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 999

107 N.Y.S.3d 456

In the MATTER OF CARMINE GG., Alleged to be a Neglected Child.Delaware County Department of Social Services, Respondent;

v.Christopher HH., Appellant.

526986

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

Calendar Date: June 6, 2019

Decided and Entered: July 3, 2019

Jonathan Lloyd Becker, Cooperstown, for appellant.

Delaware County Department of Social Services, Delhi (Amy Merklen of counsel), for respondent.

Larisa Obolensky, Delhi, attorney for the child.

Before: Garry, P.J., Egan Jr., Clark, Devine and Pritzker, JJ.

MEMORANDUM AND ORDER

Clark, J. Appeals (1) from an order of the Family Court of Delaware County (Northrup Jr., J.), entered April 25, 2018, which, in a proceeding pursuant to Family Ct Act article 10, issued a temporary order directing respondent to comply with certain conditions, and (2) from an order of said court, entered May 14, 2018, which denied respondent's motion to vacate.

Respondent is the putative father of a son (born in 2013). Pursuant to a 2018 order entered in a Family Ct Act article 6 proceeding, the child's maternal aunt and uncle had sole legal and residential custody of the child, and respondent had a minimum of four hours of weekly supervised parenting time. The 2018 order also provided that respondent could have unsupervised parenting time with the child at any time that he, the aunt, the uncle and the child's mother could agree.

In April 2018, after the uncle indicated to one of petitioner's caseworkers that he wanted to enlist in the United States Army or the Army National Guard and that he and the aunt no longer wished to have custody of the child, petitioner commenced this neglect proceeding against respondent. Petitioner also commenced separate neglect proceedings against the mother, the aunt and the uncle and made an application to remove the child from the care of the aunt and the uncle (see Family Ct Act § 1027 ). At the scheduled Family Ct Act § 1027 hearing, petitioner withdrew the neglect petitions against the uncle and the aunt, as well as its application to remove the child from their care. Petitioner, however, requested that Family Court issue a temporary order imposing certain conditions upon respondent. Over respondent's objection, Family Court granted petitioner's request and issued a temporary order, entered in April 2018, requiring respondent to submit to random urine, breath and other tests upon petitioner's request, engage in parent education services, meet with petitioner upon request, submit to one or more alcohol and drug evaluations and "meaningfully engage and participate" in any recommended treatment plan "until discharged for successful completion."

Respondent thereafter moved, pursuant to Family Ct Act § 1061, to vacate the temporary order, arguing that Family Court lacked the authority to issue a temporary order imposing "pre-disposition supervision [up]on [him] without his consent and without a hearing." Family Court denied the motion by order entered in May 2018. Respondent appeals from the temporary order and the order denying his motion to vacate, solely challenging Family Court's authority to issue the temporary order.

In July 2018, upon respondent's motion, Family Court dismissed the neglect petition against respondent for failure to state a claim. As respondent recognizes, dismissal of the underlying neglect proceeding would ordinarily render moot his appeals from the temporary order and the order denying his motion to vacate the temporary order (see generally Matter of Gaige F. [Carolyn F.], 144 A.D.3d 1575, 1575–1576, 40 N.Y.S.3d 820 [2016] ; Matter of Nicholas SS., 143 A.D.3d 1208, 1209, 39 N.Y.S.3d 841 [2016] ; Matter of Nicholas B., 26 A.D.3d 764, 764, 811 N.Y.S.2d 235 [2006] ). However, under the circumstances of this case, we find that respondent's appeals, directed at the scope of and the court's authority to issue Family Ct Act § 1029 orders, raise a substantial and novel issue that is likely to recur, yet evade review, and that, therefore, the exception to the mootness doctrine applies (see Matter of Brianna L. [Marie A.], 103 A.D.3d 181, 185–186, 956 N.Y.S.2d 518 [2012] ; Matter of Crystal AA., 271 A.D.2d 771, 771, 706 N.Y.S.2d 208 [2000], lv dismissed 95 N.Y.2d 903, 716 N.Y.S.2d 643, 739 N.E.2d 1148 [2000] ).

Turning to the merits, we agree with Family Court that it had the authority to issue, upon good cause shown, a temporary order of protection imposing upon respondent any "reasonable...