Matter of Justyce HH. , 26 N.Y.S.3d 376 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: February 18, 2016 520773
________________________________
In the Matter of JUSTYCE HH.,
a Neglected Child.
CLINTON COUNTY DEPARTMENT OF
SOCIAL SERVICES, MEMORANDUM AND ORDER
Respondent;
ANDREW II.,
Appellant.
________________________________
Calendar Date: January 14, 2016
Before: McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.
__________
Michelle I. Rosien, Philmont, for appellant.
Ethan D. Bonner, Clinton County Department of Social
Services, Plattsburgh, for respondent.
Kathleen R. Insley, Plattsburgh, attorney for the child.
__________
Clark, J.
Appeals (1) from an order of the Family Court of Clinton
County (Lawliss, J.), entered March 16, 2015, which, in a
proceeding pursuant to Family Ct Act articles 10 and 10-A, among
other things, continued the permanency plan regarding
respondent's child and denied respondent's request that said
child have visitation with her half sibling, and (2) from an
order of protection issued thereon.
Following respondent's incarceration in October 2013, his
daughter (born in 2009) was removed from his care and later
-2- 520773
adjudicated to be neglected. In a dispositional order, Family
Court continued placement of the child with petitioner and
established a permanency goal of return to parent. Following a
permanency hearing, Family Court continued the prior permanency
goal and explicitly made no provisions for visitation between the
child and respondent's newly born son (hereinafter the half
sibling). Respondent appeals from both the permanency hearing
order and an order of protection issued thereon.
Initially, contrary to petitioner's position, the
permanency hearing order being appealed from is not moot because
it was the first order to address the issue of visitation between
the child and the half sibling, and, therefore, continues to
affect the rights involved in this matter (see Matter of Kenneth
QQ. [Jodi QQ.], 77 AD3d 1223, 1224 [2010]; Matter of Brandon DD.
[Jessica EE.], 74 AD3d 1435, 1437 n 2 [2010]). However, because
the evidence at the permanency hearing indicated that the child
and the half sibling have never had contact and do not have an
existing relationship, we find that it was not an abuse of
discretion for Family Court to determine that sibling visitation
was not warranted under these circumstances (see e.g. Matter of
Keenan R. v Julie L., 72 AD3d 542, 542 [2010]; Matter of Sherman
v Hughes, 32 AD3d 959, 960-961 [2006]; Matter of Justin H., 215
AD2d 180, 181 [1995], lvs denied 86 NY2d 709, 710 [1995]; see
also Eschbach v Eschbach, 56 NY2d 167, 173 [1982]).1 In
affirming, we make note of the procedural posture herein – i.e.,
an appeal from a permanency hearing order and not a proceeding
for sibling visitation pursuant to Family Ct Act article 6.2
Respondent's appeal from the order of protection must be
dismissed for a variety of reasons. Specifically, respondent –
who was not the subject of the order – was not aggrieved by it
1
We note that the attorney for the child argued in favor
of Family Court's order.
2
We also note that the issue of contact between the child
and the half sibling was previously addressed by this Court
(Matter of Duane FF. [Harley GG.], ___ AD3d ___, 2016 NY Slip Op
00227 [2016]).
-3- 520773
(see CPLR 5511; Matter of Dana XX., 28 AD3d 1025, 1026 [2006];
Matter of William XX. v Broome County Dept. of Social Servs., 11
AD3d 735, 736 [2004]) and the order has since expired by its own
terms (see Matter of Marcus BB. [David BB.], 129 AD3d 1134, 1135
[2015]). In any event, because respondent did not address the
order in his filings before the Court, any issues related thereto
are deemed abandoned (see Rauch v Ciardullo, 127 AD3d 1293, 1293
n [2015]).
McCarthy, J.P., Garry, Lynch and Devine, JJ., concur.
ORDERED that the permanency hearing order entered March 16,
2015 is affirmed, without costs.
ORDERED that the appeal from the order of protection
entered March 16, 2015 is dismissed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court