| Matter of Charisma D. (Sandra R.) |
| 2009 NY Slip Op 07925 [67 AD3d 404] |
| November 5, 2009 |
| Appellate Division, First Department |
| In the Matter of Charisma D. and Another, Children Alleged to beNeglected. Sandra R., Appellant; Commissioner of the Administration of Children's Services,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Sharyn Rootenberg of counsel), forrespondent. Karen Freedman, Lawyers for Children, Inc., New York (Brenda Soloff of counsel), LawGuardian.
Orders of disposition, Family Court, New York County (Sara P. Schechter, J.), entered on orabout March 5, 2008, which, upon a fact-finding determination that respondent mother neglectedthe subject children, placed the children in the custody of their respective paternal grandmothersuntil the completion of the permanency hearing, unanimously reversed, on the law, withoutcosts, insofar as they bring up for review the fact-finding determination, the petition dismissed,and the remainder of the appeal dismissed as academic.
The evidence in support of the neglect finding is that police officers recovered from theapartment in which respondent resided with the subject children and her mother one glassineenvelope each of heroin and cocaine sufficient to establish misdemeanor crimes, and a digitalscale. At the time of the search, respondent, one of the children, respondent's sister, her motherand her mother's boyfriend were present in the apartment. The heroin was recovered from acabinet in the "dining room kitchenette area," the cocaine from respondent's mother's bedroom,and the scale from a dresser drawer in respondent's bedroom. According to the undisputedevidence at the fact-finding hearing, none of this contraband was in plain view. A police officertestified that respondent's mother told the police that the controlled substances were in theapartment and that they were hers; the officer also testified that respondent told the officers thather mother used drugs and that if any were found, they belonged to her mother. As for the scale,the officer testified that respondent told him about the scale and that it belonged to her infantson's father, who was no longer living in [*2]the apartment. Suchevidence is legally insufficient to establish neglect under Family Court Act § 1012 (f) (i)(B) (see Nicholson v Scoppetta, 3NY3d 357, 369 [2004]). In view of the foregoing, the terms of the placement are academic.We also note that the placement has been rendered moot by the expiration of the orders ofdisposition and subsequent orders finally discharging the children to respondent's custody.Concur—Friedman, J.P., McGuire, Moskowitz, Acosta and DeGrasse, JJ.