Matter of Mickayla WW. , 29 N.Y.S.3d 202 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: May 5, 2016 521074
________________________________
In the Matter of MICKAYLA WW.,
Alleged to be a Person in
Need of Supervision.
SULLIVAN COUNTY DEPARTMENT OF
FAMILY SERVICES, MEMORANDUM AND ORDER
Respondent;
MICKAYLA WW.,
Appellant.
________________________________
Calendar Date: March 23, 2016
Before: Peters, P.J., Lahtinen, Rose, Lynch and Aarons, JJ.
__________
Jane M. Bloom, Monticello, for appellant.
Glen H. Rosenstein, Sullivan County Department of Family
Services, Monticello, for respondent.
__________
Rose, J.
Appeal from an order of the Family Court of Sullivan County
(McGuire, J.), entered December 29, 2014, which, in a proceeding
pursuant to Family Ct Act article 7, temporarily placed
respondent in petitioner's custody.
Petitioner filed a juvenile delinquency petition against
respondent (born in 2001) and, at respondent's arraignment,
requested that she undergo an inpatient psychological evaluation.
Family Court granted petitioner's request and issued an initial
order placing respondent in petitioner's custody and remanding
her for an inpatient evaluation at a mental health facility.
-2- 521074
After the completion of the evaluation, the parties agreed that
petitioner would withdraw the juvenile delinquency petition and
file a person in need of supervision (hereinafter PINS) petition
in its place. Respondent then admitted to the allegations in the
PINS petition and, following fact-finding and dispositional
hearings, Family Court issued a December 2014 order pursuant to
Family Ct Act § 739 temporarily remanding respondent to the care
and custody of petitioner and detaining her at a residential
treatment facility pending a final dispositional order.
Respondent appeals from this temporary order.
The appeal must be dismissed. Inasmuch as both the
language of Family Court's December 2014 detention order and its
statutory authority contemplate further proceedings related to
the underlying PINS petition (see Family Ct Act § 739 [a]), it is
a nondispositional order. Accordingly, the order is not
appealable as of right, and respondent never sought leave to
appeal from it (see Family Ct Act § 1112 [a]; Matter of McCoy v
McCoy, 134 AD3d 1206, 1207 [2015]; Matter of Tina X. v John X.,
134 AD3d 1174, 1175 [2015]). Further, we decline to treat
respondent's notice of appeal as an application for leave to
appeal, as the order has been superceded by a final order of
disposition.
Respondent's additional challenge to Family Court's initial
order directing that she undergo an inpatient mental health
evaluation is also not properly before us. Generally, "only an
appeal from a final order brings up for review a prior order
issued in the proceeding" (Matter of Christian NN. [Luis OO.], 91
AD3d 1148, 1148 [2012]; see CPLR 5501 [a] [1]). In any event, we
note that the evaluation was completed and the resulting report
was admitted into the hearing record without objection.
Peters, P.J., Lahtinen, Lynch and Aarons, JJ., concur.
-3- 521074
ORDERED that the appeal is dismissed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court