| Matter of Joseph B. v Sheena KK. |
| 2008 NY Slip Op 09126 [56 AD3d 968] |
| November 20, 2008 |
| Appellate Division, Third Department |
| In the Matter of Joseph B., Appellant, v Sheena KK.,Respondent. (And Another Related Proceeding). |
—[*1] Pamela J. Joern, Albany, for respondent. Ruth Tompkins Bridgham, Law Guardian, Albany.
Stein, J. Appeal from an order of the Family Court of Albany County (Walsh, J.), enteredAugust 15, 2007, which dismissed petitioner's application, in a proceeding pursuant to Family CtAct article 10, to hold respondent in violation of a prior order of the court.
Petitioner and respondent are the parents of a daughter (born in 1996). Respondent also hasat least four other children (three daughters and a son), of whom petitioner is not the biologicalfather. In February 1999, respondent admitted to certain acts of neglect with respect to the parties'child and three of her other daughters in satisfaction of pending abuse and neglect petitionspursuant to Family Ct Act article 10. Specifically, she admitted that two of her other daughterswere sexually abused by her son, that she used excessive corporal punishment against the namedchildren and that she engaged in severe domestic violence in their presence while they were inher care and custody. Family Court's order of fact-finding and disposition contained an order ofsupervision for a one-year period which, among other things, prohibited respondent fromallowing any of the named children to have any contact with her son. The order of supervisionwas extended several times, but the last such order expressly expired in April 2002. All of thechildren were placed in foster care as a result of respondent's admission (petitioner made similaradmissions and was under a comparable order of supervision), but have since been released from[*2]placement and currently reside with respondent.
In June 2007, petitioner, who is currently incarcerated, filed a "petition for violation of anorder of protection" alleging that respondent's son is now living with respondent and the otherchildren, including the parties' child. At the initial court appearance (at which the court arrangedfor petitioner to appear by telephone), Family Court ordered an investigation and report fromChild Protective Services regarding petitioner's allegations and assured the parties that, uponrequest, they would be appointed counsel to represent them if they qualified. In a July 2007 letter,petitioner requested that Family Court appoint counsel to represent him. At the next appearance(at which petitioner again appeared by telephone), some discussion took place regarding theviability of the petition, and the matter was adjourned so that petitioner would have anopportunity to confer with an attorney regarding his options. Apparently, petitioner's formerattorney had a conflict and Family Court did not assign another attorney prior to the next courtdate. On that date, neither petitioner nor respondent appeared (there is no evidence in the recordthat arrangements were made for petitioner to appear by telephone), and Family Court dismissedthe petition on the basis of lack of jurisdiction. Petitioner now appeals. We affirm.
Initially, we note that petitioner did not have standing to file a petition alleging a violation ofan order issued in a child protective proceeding to which he was not a party (see FamilyCt Act § 1032; see generally Matter of Millard v Clapper, 254 AD2d 640, 641[1998]). However, even assuming the availability of some other justiciable claim, based on therecord before us, we find no possible basis for determining that respondent violated an order ofprotection as there was none in effect at the time the violation petition was filed. The order ofsupervision that was in effect from 1999 to 2002 could not be extended for more than one year ata time (see Family Ct Act § 1057) and had clearly expired at the time the petitionwas filed. Notably, there is no record evidence that an order of protection, separate from the orderof supervision and with a different expiration date (see Family Ct Act § 1056 [4]),was ever issued. Therefore, dismissal of the petition was proper.
Neither petitioner's absence on the date of the dismissal of his petition nor Family Court'sfailure to appoint counsel requires a different result. "[T]he right of a parent to be present at everystage of [article 10] proceedings . . . is not absolute" (Matter of Elizabeth T., 3 AD3d751, 753 [2004]). Here, particularly because the interests of the parties' child were fullyrepresented by the Albany County Department for Youth, Children and Families and her assignedLaw Guardian, the court was not prevented from proceeding in petitioner's absence (seegenerally Family Ct Act § 1042).
Furthermore, as petitioner concedes, he was not in jeopardy of losing his parental rights andwas not entitled to the assignment of counsel pursuant to Family Ct Act § 262. While theassignment of counsel might have aided petitioner in pursuing his claims which, if true, wouldseriously implicate the safety and well-being of the parties' child, those claims were, indeed,investigated and the allegations were determined to be unfounded before the petition wasdismissed. Under these circumstances, we find no basis to disturb Family Court's determination.
We have considered petitioner's remaining contentions and find them to be unpersuasive.
Cardona, P.J., Spain, Rose and Malone Jr., JJ., concur. Ordered that the order is affirmed,without costs.