| Matter of Heaven C. (Julia B.) |
| 2010 NY Slip Op 02038 [71 AD3d 1301] |
| March 18, 2010 |
| Appellate Division, Third Department |
| In the Matter of Heaven C. and Others, Neglected Children.Broome County Department of Social Services, Respondent; Julia B. et al.,Appellants. |
—[*1] Teresa C. Mulliken, Harpersfield, for Thomas C., appellant. Thomas P. Coulson, Broome County Department of Social Services, Binghamton, forrespondent. James A. Mack, Law Guardian, Binghamton.
McCarthy, J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered March 31, 2009, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 10-A, to continue the placement of respondents' children.
Respondent Julia B. (hereinafter the mother) and respondent Thomas C. (hereinafter thefather) are the parents of three children (born in 2002, 2004 and 2006). In 2007, Family Courtadjudicated the children to be neglected, placed them with petitioner and ordered respondents tomaintain a stable residence and source of income. Several subsequent permanency proceedingsresulted in the parties stipulating to orders continuing placement of the children with petitioner.At a January 2009 permanency hearing, petitioner rested on its permanency hearing reportwithout offering any testimony. The mother was the only witness called on behalf of [*2]respondents. At the conclusion of her testimony, respondents andthe Law Guardian moved to dismiss the petition and immediately return the children torespondents' care. Family Court denied the motion and approved the permanency plan thatcontinued the children's placement with the goal of returning them to respondents. Respondentsappeal, arguing, among other things, that Family Court should have rejected the permanencyhearing report because it was not signed by petitioner's counsel (see 22 NYCRR130-1.1a).[FN*]
Initially, we find that because another permanency hearing was held resulting in a September2009 order that again continued the children's placement, this appeal is moot. However, becausethe issue of whether permanency hearing reports must be signed by an attorney is novel, likely torecur and—given the statutorily mandated frequency of permanency hearings (seeFamily Ct Act § 1089 [a])—likely to evade appellate review, we find that theexception to the mootness doctrine exists and, therefore, address this narrow issue (see Matter of M.B., 6 NY3d 437,447 [2006]; Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 811[2003], cert denied 540 US 1017 [2003]; Matter of Rodriguez v Wing, 94 NY2d192, 196 [1999]; Matter ofSchermerhorn v Becker, 64 AD3d 843, 845 [2009]; see also City of New York v Maul, 59 AD3d 187, 191 [2009]).
Turning to the merits, the certification requirement contained in 22 NYCRR 130-1.1a appliesto permanency hearing reports. 22 NYCRR part 130 specifically states that it is inapplicable to,among other things, proceedings commenced under Family Ct Act articles 3, 7 and 8(see 22 NYCRR 130-1.1 [a]), but no similar exclusion is contained for proceedingsunder Family Ct Act articles 10 or 10-A. The certification regulation provides that "[e]verypleading, written motion, and other paper, served on another party or filed orsubmitted to the court shall be signed by an attorney, or by a party if the party is notrepresented by an attorney" (22 NYCRR 130-1.1a [a] [emphasis added]). It follows that apermanency hearing report, which Family Ct Act § 1089 (b) (1) and (2) specifies shall beserved on other parties and "shall be submitted to the court," must be signed by an attorney forthe social services agency responsible for the report. Importantly, however, an unsigned reportneed not be stricken if the omission is "corrected promptly after being called to the attention ofthe attorney or party" or good cause for the failure to correct the omission is shown (22 NYCRR130-1.1a [a]; see Matter of Dakota SS.[Jessica SS.], 68 AD3d 1462 [2009]; compare Matter of Green v Tierney, 59 AD3d 900, 901 [2009]).
The remaining issues have been rendered moot by the subsequent permanency hearing andorder, and do not fall within the mootness exception.
Cardona, P.J., Peters, Rose and Kavanagh, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: Although the father improperlyappealed from the decision denying his motion rather than the subsequent order, we exercise ourdiscretion to consider the premature notice of appeal as valid in the interest of justice (see Matter of Rebecca KK., 31 AD3d830, 831 n [2006]). The Law Guardian did not file a notice of appeal. In any event, the reliefhe seeks is either duplicative of relief sought by another party or unavailable in the context ofthis appeal.