C., ANGEL, MTR. OF ( 2013 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
134
CAF 11-01607
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.
IN THE MATTER OF ANGEL C., DORRANCE C., JR.,
LETA C. AND MICHAEL C.
--------------------------------------------- MEMORANDUM AND ORDER
NIAGARA COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;
LYNN H., RESPONDENT-APPELLANT,
AND DORRANCE C., RESPONDENT.
PATRICIA M. MCGRATH, LOCKPORT, FOR RESPONDENT-APPELLANT.
LAURA A. WAGNER, LOCKPORT, FOR PETITIONER-RESPONDENT.
STEPHEN C. KENNEDY, ATTORNEY FOR THE CHILDREN, LOCKPORT, FOR ANGEL C.,
DORRANCE C., JR., MICHAEL C. AND LETA C.
Appeal from an order of the Family Court, Niagara County (John F.
Batt, J.), entered August 9, 2011 in a proceeding pursuant to Family
Court Act article 10. The order denied the application of respondent
Lynn H. for the return of the subject children who were temporarily
removed from her custody.
It is hereby ORDERED that said appeal is unanimously dismissed
without costs.
Memorandum: Respondent mother appeals from an order that denied
her application pursuant to Family Court Act § 1028 for the return of
her children to her care and custody following their temporary removal
pursuant to a prior order of Family Court. We dismiss the appeal
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, and thus the appeal has been rendered
moot (see Matter of Melody B., 234 AD2d 1005, 1005, lv dismissed 90
NY2d 888; see generally Matter of Kiearah P., 46 AD3d 958, 959; Matter
of Nicholas B., 26 AD3d 764, 764). We note in any event that the
appeal is moot for the further reason that the order of disposition
expired and the children were returned to the mother’s custody during
the pendency of this appeal (see Kiearah P., 46 AD3d at 959; Matter of
Javier R. [Robert R.], 43 AD3d 1, 3). Contrary to the mother’s
contention, this case does not fall within the exception to the
mootness doctrine (see Matter of Hearst Corp. v Clyne, 50 NY2d 707,
714-715; Matter of Gannett Co., Inc. v Doran, 74 AD3d 1788, 1789).
The mother contends on appeal that the court lacked an adequate basis
for denying her Family Court Act § 1028 application. There is no
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CAF 11-01607
likelihood of repetition with respect to that issue because, although
there may be additional Family Court Act § 1028 hearings with respect
to this family (see generally § 1028 [a]), the circumstances to be
addressed in each application are fact-specific; the issue raised does
not typically evade review (see generally §§ 1028, 1112); and the
issue raised is not substantial or novel (see generally Matter of
McGrath, 245 AD2d 1081, 1082).
Entered: February 8, 2013 Frances E. Cafarell
Clerk of the Court