Matter of Iryanna I. , 19 N.Y.S.3d 198 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 19, 2015 518170
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In the Matter of IRYANNA I.,
Alleged to be a Neglected,
Abused and/or Severely
Abused Child.
ST. LAWRENCE COUNTY DEPARTMENT MEMORANDUM AND ORDER
OF SOCIAL SERVICES,
Respondent;
BENJAMIN K.,
Appellant.
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Calendar Date: October 13, 2015
Before: Lahtinen, J.P., Garry, Egan Jr. and Clark, JJ.
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Alexander Lesyk, Norwood, for appellant.
Maureen C. McGaw, Canton, attorney for the child.
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Lahtinen, J.P.
Appeals from an order and an amended order of the Family
Court of St. Lawrence County (Morris, J.), entered September 13,
2013 and September 16, 2013, which, in a proceeding pursuant to
Family Ct Act article 10, denied respondent's motion for summary
judgment dismissing the petition.
In 2013, petitioner commenced this proceeding alleging that
respondent had derivatively neglected, abused and/or severely
abused the subject child (born in 2013). Respondent moved for
summary judgment dismissing the petition. In an order and
amended order, Family Court found that triable issues of fact
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existed regarding whether respondent had complied with required
counseling and whether the conditions that led to the previous
findings of abuse continued and, therefore, it denied the motion.
Respondent now appeals.
Respondent's counsel seeks to be relieved of his assignment
on the ground that there are no nonfrivolous issues to be pursued
on appeal (see Anders v California, 386 U.S. 738 [1967]; Matter of
Jennifer HH. v Veronica II., 70 AD3d 1072, 1073 [2010]; Matter of
William XX. v Broome County Dept. of Social Servs., 11 AD3d 735,
736 [2004]). While "[i]ntermediate orders in Family Ct Act
article 10 matters involving abuse and neglect are appealable as
of right" (Matter of Ameillia RR. [Megan SS.], 95 AD3d 1525, 1526
[2012]; see Family Ct Act § 1112 [a]; cf. Matter of Confort v
Nicolai, 9 AD3d 428, 429 [2004]; Matter of Koch v Ackerman, 142
AD2d 581, 582 [1988]), a hearing was held after the order denying
respondent's motion was issued, and Family Court held that
petitioner had established that respondent derivatively neglected
and abused the subject child. As a result, we agree with the
parties that the instant matter is moot (see Matter of Ameillia
RR. [Megan SS.], 95 AD3d at 1526; Matter of Alexander K.
[Jennifer N.], 77 AD3d 1023, 1024 [2010]) and, therefore, we need
not address counsel's application to be relieved of his
assignment (see Matter of Alexander K. [Jennifer N.], 77 AD3d at
1024 [2010]; Matter of Chelsea M. [Ernest M.], 68 AD3d 1489,
1489-1490 [2009]).
Garry, Egan Jr. and Clark, JJ., concur.
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ORDERED that the appeals are dismissed, as moot, without
costs.
ENTER:
Robert D. Mayberger
Clerk of the Court