| Matter of Brittany C. (Linda C.) |
| 2009 NY Slip Op 08221 [67 AD3d 788] |
| November 10, 2009 |
| Appellate Division, Second Department |
| In the Matter of Brittany C., an Infant. Suffolk County Departmentof Social Services, Respondent; Linda C., Appellant. (Proceeding No. 1.) In the Matter ofHeaven C., an Infant. Suffolk County Department of Social Services, Respondent; Linda C.,Appellant. (Proceeding No. 2.) In the Matter of Timothy C., an Infant. Suffolk CountyDepartment of Social Services, Respondent; Linda C., Appellant. (Proceeding No.3.) |
—[*1] Christine Malafi, County Attorney, Central Islip, N.Y. (James G. Bernet of counsel), forrespondent. J. Gary Waldvogel, Smithtown, N.Y., attorney for the children.
In three related child protective proceedings pursuant to Family Court Act article 10, the[*2]mother appeals (1) from an order of the Family Court,Suffolk County (Hoffmann, J.), dated July 2, 2008, which denied her motion to dismiss thepetitions for lack of personal jurisdiction, (2) from an order of fact-finding and disposition of thesame court dated August 12, 2008, which, upon the order dated July 2, 2008, and upon hersubsequent default in appearing at the fact-finding hearing, inter alia, found that she abused thesubject children and placed the children in the custody of their father under the petitioner'ssupervision, and (3) from three orders of protection of the same court all dated August 12, 2008(one for each child), which, upon the order dated July 2, 2008, and upon the order of fact-findingand disposition, among other things, directed her to stay away from the children for a period ofone year.
Ordered that the appeal from the order dated July 2, 2008, is dismissed, without costs ordisbursements, as that order was superseded by the order of fact-finding and disposition; and it isfurther,
Ordered that the appeal from the order of fact-finding and disposition is dismissed, withoutcosts or disbursements, except insofar as it brings up for review the denial of the mother's motionto dismiss the petitions for lack of personal jurisdiction; and it is further,
Ordered that the order of fact-finding and disposition is affirmed insofar as reviewed,without costs or disbursements; and it is further,
Ordered that the appeals from the orders of protection are dismissed as academic, withoutcosts or disbursements.
Since the mother did not appear at, and her attorney did not participate in, the fact-findinghearing, the order of fact-finding and disposition was entered on default (Matter of Joseph Kenneth B., 47 AD3d809, 809 [2008]; see Matter ofCarolyn Z., 53 AD3d 875, 877 [2008]; Tun v Aw, 10 AD3d 651, 651 [2004]). "However, notwithstandingthe prohibition set forth in CPLR 5511 against an appeal from an order or judgment entered uponthe default of the appealing party, the appeal from the order [of fact-finding and disposition]brings up for review those 'matters which were the subject of contest' before the [Family] Court"(Tun v Aw, 10 AD3d at 652, quoting James v Powell, 19 NY2d 249, 256 n 3[1967]; see Matter of Mary C. vAnthony C., 61 AD3d 682, 682-683 [2009]; Sarlo-Pinzur v Pinzur, 59 AD3d 607, 607-608 [2009]).Accordingly, review is limited to the denial of the mother's motion to dismiss the petitions forlack of personal jurisdiction (see James v Powell, 19 NY2d at 256 n 3; Matter ofMary C. v Anthony C., 61 AD3d at 682-683; see also Sarlo-Pinzur v Pinzur, 59AD3d at 607-608; Tun v Aw, 10 AD3d at 652).
Under the circumstances present here, the Family Court did not err in denying the mother'smotion to dismiss the petitions for lack of personal jurisdiction (see Matter of Kali-Ann E., 27 AD3d796, 797-798 [2006]; cf. Matter ofKaila B., 64 AD3d 647 [2009]; Matter of Psyllos v Psyllos, 21 AD3d 560 [2005]).
The orders of protection expired by their own terms on August 12, 2009, and thedetermination of the appeals from those orders would, under the facts of this case, have no directeffect upon the parties (see Matter ofEdelyn S., 62 AD3d 713, 713-714 [2009]; Matter of Eddie Michael L., 63 AD3d 1066 [2009]; Matter of Isaiah S., 63 AD3d 948[2009]; Matter of Ajay P. , 60AD3d 681, 683 [2009]). Accordingly, the appeals from the orders of protection must bedismissed as academic. Mastro, J.P., Santucci, Chambers and Lott, JJ., concur.