C., ALEX A., MTR. OF , 921 N.Y.S.2d 759 ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
516
CAF 10-00838
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND GREEN, JJ.
IN THE MATTER OF ALEX A.C.
---------------------------------------
CATTARAUGUS COUNTY DEPARTMENT OF SOCIAL MEMORANDUM AND ORDER
SERVICES, PETITIONER-RESPONDENT;
MARIA A.P., RESPONDENT-APPELLANT.
CARR SAGLIMBEN LLP, OLEAN (JAY D. CARR OF COUNSEL), FOR
RESPONDENT-APPELLANT.
STEPHEN J. RILEY, OLEAN, FOR PETITIONER-RESPONDENT.
GERALD M. DRISCOLL, ATTORNEY FOR THE CHILD, OLEAN, FOR ALEX A.C.
Appeal from an order of the Family Court, Cattaraugus County
(Michael L. Nenno, J.), entered March 4, 2010 in a proceeding pursuant
to Family Court Act article 10. The order, inter alia, found that
respondent violated an order of protection and committed her to six
months in jail.
It is hereby ORDERED that said appeal from the order insofar as
it concerns commitment to jail is unanimously dismissed and the order
is otherwise affirmed without costs.
Memorandum: Respondent mother appeals from an order finding that
she willfully violated an order of protection and committing her to a
jail term of six months. The commitment was stayed for a period of
one year on the condition that the mother not violate the order of
protection. We reject the mother’s contention that Family Court
violated Family Court Act § 1041 (a) by making findings of fact with
respect to a violation petition that was not timely served.
In August 2009, petitioner filed a neglect petition alleging that
the subject child had been maltreated and was in danger of physical,
mental, and emotional harm due to the mother’s drug use, involvement
in violent crime, and willingness to continue an abusive relationship
with the child’s father. The court thereafter issued temporary orders
removing the child from the custody of the mother, requiring the
mother to stay away from the child, and ordering the mother to
prohibit any contact between the child and the father. At a hearing
in November 2009, petitioner offered to return custody of the child to
the mother provided that she have no contact with the father and that
she prohibit any contact between the child and the father. The mother
agreed to those conditions, and the court issued an order of
-2- 516
CAF 10-00838
protection to that effect. Five days later, petitioner sought to
restore the matter to the calendar on the ground that the mother had
violated the order of protection, and a hearing on the previously
filed neglect petition ensued. The mother was present and represented
by counsel, and a police officer testified on behalf of petitioner
that, on November 6, 2009, he stopped a vehicle containing the mother,
the father, and the subject child. During the pendency of the neglect
proceedings, petitioner filed an amended neglect petition that
reiterated the prior allegations and included the additional
allegation that the mother, the father, and the child were together on
November 6, 2009, in violation of the order of protection. The same
day, petitioner also filed a violation petition, alleging that the
mother willfully violated the November 5, 2009 order of protection
both by having contact with the father and by allowing the father to
have contact with the child on November 6, 2009. The mother was
served with the violation petition when the hearing on the neglect
petition resumed on November 23, 2009 and, at the conclusion of that
hearing, which became in effect a combined neglect/violation hearing,
the court found that the mother willfully violated the order of
protection. The record thus establishes that the mother had notice of
petitioner’s allegation that she violated the order of protection,
that the mother was present during the neglect/violation hearing, and
that she was served with the violation petition at the continued
neglect hearing prior to the issuance of the court’s findings of fact.
We therefore conclude that, contrary to the mother’s contention, the
court did not violate her due process right to notice or her statutory
rights pursuant to Family Court Act § 1041 (a) (see generally Matter
of Anita J.F., 267 AD2d 1044, lv denied 94 NY2d 762).
The mother further contends that the court lacked the authority
under Family Court Act § 1072 to commit her to a jail term because the
November 5, 2009 order was not an “order of supervision.” We agree
with petitioner, however, that the mother’s contention is moot
inasmuch as the commitment portion of the order has expired by its own
terms (see generally Matter of Lomanto v Schneider, 78 AD3d 1536,
1537; Matter of Johnson v Boone, 289 AD2d 938). We therefore dismiss
the mother’s appeal from that part of the order.
Entered: April 29, 2011 Patricia L. Morgan
Clerk of the Court