| Matter of Anthony WW. (Karen WW.) |
| 2013 NY Slip Op 00964 [103 AD3d 941] |
| February 14, 2013 |
| Appellate Division, Third Department |
| In the Matter of Anthony WW. and Others, PermanentlyNeglected Children. St. Lawrence County Department of Social Services, Respondent;Karen WW., Appellant. |
—[*1] David D. Willer, St. Lawrence County Department of Social Services, Canton, forrespondent. Omshanti Parnes, Plattsburgh, attorney for the children.
McCarthy, J. Appeal from an order of the Family Court of St. Lawrence County(Potter, J.), entered January 3, 2012, which granted petitioner's application, in aproceeding pursuant to Social Services Law § 384-b, to extend the term of asuspended judgment for a period of one year.
Respondent and Michael WW. (hereinafter the father) are married and have threechildren (born in 1999, 2001 and 2003). In a 2007 dispositional order entered onconsent, Family Court found that the children were permanently neglected by respondentand the father. The court, however, suspended the judgment for one year, with thesuspension terminating in May 2008. Prior to the expiration of the suspended judgment,petitioner sought to terminate the parental rights of respondent and the father based uponallegations of mental illness. One month later, petitioner commenced this proceedingseeking to extend the suspended judgment. Family Court ultimately terminated theparental rights of respondent and the father on the ground that they suffered from amental illness which prevented them from providing proper care for the children. Thecourt dismissed, as moot, the petition to extend the suspended judgment.[*2]
On appeal, this Court reversed the termination ofparental rights, finding that the evidence relied on by Family Court should not have beenadmitted (Matter of AnthonyWW. [Michael WW.], 86 AD3d 654 [2011], lv denied 17 NY3d 897[2011]; Matter of AnthonyWW. [Karen WW.], 86 AD3d 662 [2011]). Upon remittal, Family Court held ahearing on the newly-revived petition to extend the suspended judgment.[FN*]Following that hearing, the court extended the suspended judgment for one year.Respondent appeals.
The order extending the suspended judgment expired in September 2012. "In generalan appeal will be considered moot unless the rights of the parties will be directly affectedby the determination of the appeal and the interest of the parties is an immediateconsequence of the judgment" (Matter of Hearst Corp. v Clyne, 50 NY2d 707,714 [1980]; see Matter of OliviaSS. [William TT.], 75 AD3d 800, 801 [2010]). In light of the fact thatrespondent's compliance with the terms of the suspended judgment must be evaluated inanticipation of the expiration of the extension (see 22 NYCRR 205.50 [b], [c])and the court must render a determination as to the disposition based solely upon the bestinterests of the children (see Family Ct Act §§ 631, 633), the rightsof the parties will not be directly affected by a determination on this appeal. The questionnow is not whether the suspended judgment should be extended, as only one extension ispermitted (see Family Ct Act § 633 [b]), but what final disposition isappropriate. Accordingly, the challenges to the granting of the extension raised on thisappeal are now moot and we are not persuaded that the exception to the mootnessdoctrine is applicable here (seeMatter of Michael A. [Patricia A.], 79 AD3d 1230, 1231 [2010]; Matter of Brenden O., 13AD3d 779, 780 [2004]).
At oral argument, respondent's counsel informed us that, despite the expiration of theorder on appeal and the requirements of Family Ct Act § 633, Family Court hasnot determined respondent's compliance with the suspended judgment. We are dismayedthat, since the expiration of the order in September 2012, neither petitioner, respondentnor the attorney for the children has made an application to Family Court seekingpermanency for these children. We recommend that one or all of them do so forthwith.
Mercure, J.P., Spain and Egan Jr., JJ., concur. Ordered that the appeal is dismissed,as moot, without costs.
Footnote *: The father consented tothe extension of the suspended judgment, so the hearing only addressed whetherextension was proper as to respondent.