Niagara Cnty. Dep't of Soc. Servs. v. Desire E. (In re Keon D.W.)

• Decision Date: 21 December 2018
• Docket Number: CAF 16–00088,1456
• Parties: In the MATTER OF KEON D.W. Niagara County Department of Social Services, Petitioner–Respondent; v. Desire E., Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 1582

91 N.Y.S.3d 646

In the MATTER OF KEON D.W.Niagara County Department of Social Services, Petitioner–Respondent;

v.Desire E., Respondent–Appellant.

1456

CAF 16–00088

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

Entered: December 21, 2018

CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT–APPELLANT.

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

MELISSA A. CAVAGNARO, BUFFALO, ATTORNEY FOR THE CHILD.

PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CURRAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

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

Memorandum: Respondent mother appeals from an order entered in a proceeding pursuant to Family Court Act article 10, which awarded temporary custody of her son to the son's biological father while she was incarcerated. We dismiss the appeal because a finding of neglect and final dispositional order was entered during the pendency of this appeal. An appeal from a temporary order is "rendered moot by Family Court's subsequent finding of neglect" and issuance of a final dispositional order, and thus "must be dismissed" ( Matter of Makayleigh A. [Miranda A.], 146 A.D.3d 1103, 1104, 44 N.Y.S.3d 788 [3d Dept. 2017] ; see Matter of Bruce P., 138 A.D.3d 864, 865, 29 N.Y.S.3d 536 [2d Dept. 2016] ; Matter of John S., 26 A.D.3d 870, 870, 810 N.Y.S.2d 754 [4th Dept. 2006] ). " ‘Inasmuch as a temporary order 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 Cali L., 61 A.D.3d 1131, 1133, 876 N.Y.S.2d 557 [3d Dept. 2009] ).