| Matter of Ameillia RR. (Megan SS.) |
| 2012 NY Slip Op 03910 [95 AD3d 1525] |
| May 17, 2012 |
| Appellate Division, Third Department |
| 2—In the Matter of Ameillia RR., a Child Alleged to beNeglected. St. Lawrence County Department of Social Services, Respondent; Megan SS.,Appellant, et al., Respondent. |
—[*1] David D. Willer, St. Lawrence County Department of Social Services, Canton, forrespondent. Aaron Turetsky, Keeseville, attorney for the child.
Spain, J. Appeal from an order of the Family Court of St. Lawrence County (Potter, J.),entered August 9, 2011, which, in a proceeding pursuant to Family Ct Act article 10, denied amotion by respondent Megan SS. to have the subject child be made available for examination bya physician.
Petitioner commenced this proceeding pursuant to Family Ct Act article 10 alleging thatrespondent Megan SS. (hereinafter the mother) and her live-in partner, respondent Thomas TT.,had neglected the mother's child, Ameillia RR. (born in 2008). The petition alleged that the childhad sustained bruises and other unexplained injuries while in respondents' sole care. The mothermoved, pursuant to Family Ct Act § 1038 (c), for an order directing that thechild—reportedly placed in the custody of her father at the outset of theseproceedings—be made available for a [*2]pediatricexamination to determine if she suffers from a medical condition that causes her to bruise easily,as the mother alleged (see Matter of Jessica R., 78 NY2d 1031, 1032-1034 [1991]).Petitioner, together with the attorney for the child and the child's father, opposed the application,which Family Court denied in a written order entered August 9, 2011, finding that the mother'ssubmissions were facially insufficient to support the requested relief. The mother has appealedfrom that order.
We have been advised that Family Court subsequently conducted a hearing and issued anorder of fact-finding and disposition entered February 15, 2012 concluding that respondents hadneglected the child.[FN*] Placement of the child was continued with the father, with supervised visits to the mother.Thomas TT. was directed to have no contact with the child and orders of protection were issued.The mother thereafter appealed separately from those orders, which are not yet before us.
Intermediate orders in Family Ct Act article 10 matters involving abuse and neglect areappealable as of right (see Family Ct Act § 1112 [a]). However, the mother'swithin appeal from the intermediate discovery order must be dismissed as moot, in this context,because the fact-finding and dispositional hearings have concluded and, thus, there is noproceeding pending in which this Court might direct the requested examination of the child, werethe mother to prevail. That is, it cannot be said that "the rights of the parties will be directlyaffected by the determination of the appeal" (Matter of Hearst Corp. v Clyne, 50 NY2d707, 714 [1980]), as a favorable ruling would not entitle the mother to any particular relief.
This discovery statute "is designed to enhance procedural fairness and the fact-findingprocess" (Matter of Jessica R., 78 NY2d at 1033). The resulting discovery order here isonly reviewable in conjunction with the appeal of the final order, wherein the record as a wholemay be evaluated to determine whether the application was properly denied and, if not, theappropriate remedy (see e.g. Matter ofFatima M., 16 AD3d 263, 272-273 [2005]; Matter of Ashley B., 2 AD3d 1402, 1402 [2003], lv denied2 NY3d 702 [2004]; Matter of Keith JJ., 295 AD2d 644, 646 [2002]; Matter ofEnrique B., 267 AD2d 75, 75-76 [1999], lv denied 94 NY2d 762 [2000]; Matterof Megan G., 266 AD2d 835 [1999], lv denied 94 NY2d 761 [2000]; Matter ofTyler K., 261 AD2d 834, 834 [1999]; Matter of Dawn H., 221 AD2d 235 [1995];Matter of Diana D., 218 AD2d 697, 697-698 [1995]; cf. Matter of Crystal AA.,271 AD2d 771, 771 [2000], appeal dismissed 95 NY2d 903 [2000]). The mother's appealfrom the fact-finding order and disposition brings up for review all nonfinal orders that affectedthe final judgment (see Family Ct Act § 1118; CPLR 5501 [a] [1]).
Rose, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the appeal isdismissed, as moot, without costs.
Footnote *: The fact-finding anddispositional order reflects that the nonrespondent father of the child appeared with counsel andparticipated as an interested party intervenor (see Family Ct Act § 1035 [d]).