Niagara Cnty. Dep't of Soc. Servs. v. Katherine F.L. (In re Nickolas B.)

• Decision Date: 21 December 2018
• Docket Number: CAF 18–00022,1268
• Citation: 90 N.Y.S.3d 780,167 A.D.3d 1538
• Parties: In the MATTER OF NICKOLAS B., Nevaeh J.L., and Zachery C. Niagara County Department of Social Services, Petitioner–Respondent; v. Katherine F.L., Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 1538

90 N.Y.S.3d 780

In the MATTER OF NICKOLAS B., Nevaeh J.L., and Zachery C.Niagara County Department of Social Services, Petitioner–Respondent;

v.Katherine F.L., Respondent–Appellant.

1268

CAF 18–00022

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

Entered: December 21, 2018

DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (THERESA L. PREZIOSO OF COUNSEL), FOR RESPONDENT–APPELLANT.

ANTHONY L. RESTAINO, LOCKPORT, FOR PETITIONER–RESPONDENT.

LAURA A. MISKELL, LOCKPORT, ATTORNEY FOR THE CHILDREN.

PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that said appeal is unanimously dismissed without costs.

Memorandum: Respondent mother appeals from an order that denied her Family Court Act § 1028 application seeking the return of her children to her care and custody following their temporary removal pursuant to a prior order. We dismiss the appeal as moot because a final order of disposition was entered during the pendency of the appeal, finding that the children are neglected and placing them in petitioner's custody. "[A]n appeal from a denial of an application for return of a child removed as a result of the initiation of a proceeding pursuant to Family [Court] Act article 10 becomes moot at the point a decision is made on the charges of neglect or abuse" ( Matter of Corine G. [William G.] , 135 A.D.3d 443, 444, 24 N.Y.S.3d 15 [1st Dept. 2016] ; see Matter of Bruce P. , 138 A.D.3d 864, 865, 29 N.Y.S.3d 536 [2d Dept. 2016] ; Matter of Angel C. [Lynn H.] , 103 A.D.3d 1246, 1247, 958 N.Y.S.2d 921 [4th Dept. 2013] ; cf. Matter of C. Children , 249 A.D.2d 540, 540, 672 N.Y.S.2d 134 [2d Dept. 1998] ) and, " ‘[i]nasmuch as a temporary order [of removal] is not a finding of wrongdoing, the exception to the mootness doctrine does not apply’ " ( Matter of Faith B. [Rochelle C.] , 158 A.D.3d 1282, 1282–1283, 68 N.Y.S.3d 352 [4th Dept. 2018], lv denied 31 N.Y.3d 910, 2018 WL 2977096 [2018] ; see Matter of Karrie–Ann ZZ. [Tammy ZZ.] , 132 A.D.3d 1180, 1181, 19 N.Y.S.3d 128 [3d Dept. 2015] ).