| Matter of Alyssa L. (Deborah K.) |
| 2012 NY Slip Op 02350 [93 AD3d 1083] |
| March 29, 2012 |
| Appellate Division, Third Department |
| In the Matter of Alyssa L. and Another, Children Alleged to bePermanently Neglected. Albany County Department for Children, Youth and Families,Respondent; Deborah K., Appellant. |
—[*1] James J. Green, Albany County Department for Children, Youth and Families, Albany, forrespondent. Sharon L. McNulty, Albany, attorney for the child. William V. O'Leary, Albany, attorney for the child.
Spain, J. Appeal from an order of the Family Court of Albany County (Duggan, J.), enteredJuly 7, 2010, which granted petitioner's application, in a proceeding pursuant to Social ServicesLaw § 384-b, to adjudicate respondent's children to be permanently neglected.
Respondent is the mother of two girls, Alyssa L. (born in 1993) and Rebekah K. (born in1997). A neglect investigation began in May 2007, during which the girls reported thatrespondent, due to an addiction to multiple pain medications and substances, regularly fell asleepwhile cooking or driving, had been involved in several accidents, and was often passed out whenthey returned home from school with cigarettes or candles left burning, causing them to be [*2]extremely fearful of being in her care. The girls also reported thatrespondent was verbally abusive to Alyssa and, when they expressed fear about her driving,respondent deliberately drove her car into oncoming traffic. Despite orders of protection, amongother things, prohibiting respondent from driving with the girls or using the stove without theirsupervision, respondent's conduct continued, placing the girls at physical and emotional risk. InOctober 2007, a neglect petition was filed; Alyssa was removed on an emergency application andtemporarily placed in foster care (see Family Ct Act § 1024), and Rebekah wastemporarily placed in the custody of her half sister under Family Ct Act article 6 until April 2008,when that order was vacated. Rebekah was thereafter temporarily placed in petitioner's custodyand has since lived with Alyssa in the same foster home.
In May 2008, respondent consented to a finding of neglect without admission (seeFamily Ct Act § 1051 [a]) based upon uncontested sworn facts alleged in the neglectpetition and upon petitioner's proof. Respondent was placed under petitioner's supervision andthe girls were placed in petitioner's custody. The order of supervision required respondent,among other things, to cooperate with any services petitioner deemed appropriate and to followany recommendations, including alcohol, substance abuse and mental health evaluations andtreatment recommendations, as well as prevention programs with individual and familycounseling. All contact between the girls and respondent, including supervised visitation, wasleft up to the girls to request as they wished, consistent with their counselors' recommendationsagainst forced visitation at that time. The permanency plan provided for their return torespondent.
In May 2009, petitioner commenced the instant proceeding to terminate respondent's parentalrights as to both girls, alleging her failure to plan for their future since their removal in October2007. Following a lengthy fact-finding hearing, respondent was determined to have permanentlyneglected the girls in that, despite petitioner's diligent efforts to encourage and strengthen theparent-child relationship, she failed for a period of at least one year to plan for their future,although able to do so (see Family Ct Act § 614; Social Service Law § 384-b[7]). Respondent subsequently executed a voluntary surrender of her parental rights as to bothgirls (see Social Service Law § 384-c).[FN1]Respondent now appeals from the fact-finding order of permanent neglect, but not the final orderapproving her voluntary surrender, which order is not included in the record before us.
Respondent's appeal from the fact-finding order in this permanent neglect proceeding, takenas of right, is dismissed, as "[no] appeal lies as of right from a nondispositional order of theFamily Court in a proceeding pursuant to Social Services Law § 384-b to terminateparental rights based upon permanent neglect, in contrast to a nondispositional order in aneglect proceeding pursuant to Family Court Act article 10" (Matter of Sheldon D.G., 6 AD3d613, 613 [2d Dept 2004] [emphases added], citing Family Ct Act § 1112 [a] andMatter of Roy D., 207 AD2d 958 [4th Dept 1994]; see Matter of Tasha E., 161AD2d 226, 227 [1st Dept 1990]; Matter of Shawn C.A., 110 AD2d 697, 698 [2d Dept1985], lv denied 65 NY2d 605 [1985]; see also Castro v Castro, 198 AD2d 594,594 [1993]). Pursuant to Family Ct Act § 1112 (a), "[a]n appeal [*3]may be taken as of right from any order of disposition." However,an order of fact-finding is not an order of disposition (compare Family Ct Act§§ 623, 631, with Family Ct Act § 622). Further, while Family Ct Act§ 1112 (a) creates an exception and allows an appeal as of right "from an intermediate orfinal order in a case involving abuse or neglect," that provision has been interpreted "to apply toabuse and neglect cases brought pursuant to Family Court Act article 10, which mayinvolve immediate risk to children . . . [but not] to permanent neglect cases broughtpursuant to . . . article 6[FN2][because] such cases do not lie unless the children have been in foster care for more than oneyear (see, Family Ct Act § 614 [1] [d]), and thus, those children are not [similarly]at immediate risk" (Matter of Roy D., 207 AD2d at 958-959 [emphases and footnoteadded]; see Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A,Family Ct Act § 1112, at 256-257; 11 Carmody-Wait 2d § 74:73).[FN3]Accordingly, an appeal as of right by respondent from the order of fact-finding did not lie.
As respondent did not seek permission to appeal, the matter is not properly before us(see Family Ct Act § 1112 [a]). Given that respondent subsequently surrenderedher parental rights as to both girls and the termination petition was withdrawn, Alyssa hasreached the age of majority, and the lack of any apparent merit to the claims raised inrespondent's appellate brief, we decline to treat respondent's notice of appeal as a request forpermission to appeal or to grant permission to appeal (see Matter of Harley v Harley, 129AD2d 843, 844 [1987]; cf. Matter of Erika G., 289 AD2d 803, 803 n 2[2001]).
Mercure, A.P.J., Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that theappeal is dismissed, without costs.
Footnote 1: The parental rights of Alyssa'sfather had been previously terminated, and Alyssa has reached the age of majority. Rebekah'sfather received notice of respondent's petition, but did not appear or participate in theseproceedings.
Footnote 2: A review of the legislativehistory of the 1991 amendments to Family Ct Act § 1112 (a) (see generally BillJacket, L 1991, ch 34)—in which appeals as of right from intermediate orders wereaccorded to cases of neglect on parity with cases of abuse—reflects no intention to includeFamily Ct Act article 6 permanent neglect fact-finding orders in the appeal as of right category.Indeed, it would be anomalous to single out nondispositional fact-finding orders in termination ofparental rights cases based upon permanent neglect for as of right appeal status, but to excludefact-finding orders in termination cases premised upon abandonment, mental illness or severeabuse.
Footnote 3: To the extent that our decisionin Matter of Albert T. (188 AD2d 934, 935 and 935 n [1992]) may suggest that an appealas of right lies from a nondispositional fact-finding order in a permanent neglect proceeding, itshould not be followed.