B., CLEOPHUS, MTR. OF ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
367
CAF 10-02163
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.
IN THE MATTER OF CLEOPHUS B.
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ONEIDA COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;
MEMORANDUM AND ORDER
ERIKA B., RESPONDENT.
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TORRENCE B., APPELLANT.
PETER J. DIGIORGIO, JR., UTICA, FOR APPELLANT.
DENISE J. MORGAN, UTICA, FOR PETITIONER-RESPONDENT.
JOHN G. KOSLOSKY, ATTORNEY FOR THE CHILD, UTICA, FOR CLEOPHUS B.
Appeal from an order of the Family Court, Oneida County (James R.
Griffith, J.), entered September 30, 2010 in a proceeding pursuant to
Family Court Act article 10. The order, among other things, adjudged
that it is in the best interests of the subject child to remain in the
custody of petitioner.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Appellant father appeals from an order that
continued placement of the child in the custody of petitioner. We
note at the outset that this appeal is moot in light of the subsequent
permanency orders continuing placement of the child in the custody of
petitioner (see Matter of Dustin B., 71 AD3d 1426, 1427). We
conclude, however, that the exception to the mootness doctrine applies
herein (see Matter of Latanya H., 89 AD3d 1528, 1529; see generally
Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715).
Family Court adjudicated the child to be neglected by respondent
mother, but we affirmed an order dismissing the petition insofar as it
alleged that the father derivatively neglected the child (Matter of
Cleophus M.B., 90 AD3d 1512). The father moved for summary judgment
seeking to vacate the order of placement of the child in petitioner’s
custody and to award him immediate custody. The court denied the
motion, determining that the father failed to allege any facts
demonstrating his present ability to care for the child, and the court
then conducted a hearing. Both the Attorney for the Child and
petitioner raised the issue of extraordinary circumstances at the
hearing. After the hearing, the court determined that extraordinary
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CAF 10-02163
circumstances did not exist to continue placement of the child in
petitioner’s custody and released the child to the father’s custody.
The court, however, placed the father under the supervision of
petitioner and ordered the father to comply with, inter alia, random
drug and alcohol testing. It is undisputed that the father failed to
comply with the drug testing, whereupon the court entered the order
that is currently before us on appeal.
Initially, we reject the father’s contention that the court erred
in denying his motion for summary judgment. The court denied the
motion and held the hearing so that the father could “make a basic
showing of an ability to provide for the child’s needs.” Considering
that the child had been in foster care for nine months prior to the
motion, we conclude that it was proper for the court to hold a hearing
to determine if the father was entitled to custody of the child (see
Matter of Alex LL. v Albany County Dept. of Social Servs., 270 AD2d
523, 527).
The father contends that, because the court dismissed the neglect
petition against him, the court was without jurisdiction to impose
conditions on his behavior through an order of supervision and to make
compliance with those conditions a prerequisite to returning the child
to his care and custody. We reject that contention. Upon determining
that the mother had neglected the child, the court issued an order of
disposition pursuant to Family Court Act § 1054 (a). That statute
provides in relevant part that, “[i]f the order of disposition
releases the child to the custody of his or her parent or other person
legally responsible for his or her care at the time of the filing of
the petition, the court may place the person to whose custody the
child is released under supervision of a child protective agency or of
a social services official or duly authorized agency . . . .”
Contrary to the father’s contention, the fact that there was no
finding of neglect against him is of no moment inasmuch as “ ‘[t]he
parent or other person legally responsible to whose custody the child
is released need not be the respondent’ ” (Matter of Kahira C., 269
AD2d 840, 841, lv denied 95 NY2d 751; see also Matter of Christina
I., 226 AD2d 789, lv denied 88 NY2d 808).
Entered: March 16, 2012 Frances E. Cafarell
Clerk of the Court