| Matter of Karlee JJ. (Jessica JJ.) |
| 2013 NY Slip Op 02809 [105 AD3d 1304] |
| April 25, 2013 |
| Appellate Division, Third Department |
| In the Matter of Karlee JJ., an Infant. Broome CountyDepartment of Social Services, Petitioner; Jessica JJ., Respondent. James A. Mack, asAttorney for the Child, Appellant. |
—[*1] Samuel D. Castellino, Elmira, for respondent.
In 2009, respondent executed a judicial surrender of her child to petitioner foradoption by the maternal grandmother, subject to specified conditions of visitation andcontact. The conditional surrender was approved by Family Court (Sgueglia, J.), andrespondent's parental rights were terminated. Respondent was subsequently found tohave harassed the grandmother (Connerton, J.), and the family offense proceeding wastransferred for disposition to the judge before whom the adoption was then pending(Charnetsky, J). In April 2011, upon respondent's default, a two-year no-contact order ofprotection was granted in favor of the grandmother. In August 2011, the attorney for thechild moved for "modification" of the judicial surrender, arguing that, based upon theorder of protection, the terms of the judicial surrender were no [*2]longer in the child's best interests. Respondent's counselsubmitted an affidavit in opposition asserting that the attorney for the child was notacting upon the child's wishes but, rather, upon the grandmother's behalf. The attorneyfor the child sought an award of sanctions against respondent's counsel, and the twoattorneys engaged in a series of contentious correspondence. In December 2011, FamilyCourt denied the modification petition as premature, and reprimanded counsel forrespondent, but declined to render a monetary award or other sanction. The attorney forthe child appeals.
Initially, we do not find that Family Court abused its discretion by declining toimpose financial sanctions while reprimanding respondent's counsel for his unacceptableconduct (see 22 NYCRR 130-1.1; Dickson v Slezak, 73 AD3d 1249, 1251 [2010]). As to thesubstantive issue, prior to the finalization of an adoption, where there is a substantialfailure of a material condition of a surrender executed pursuant to Social Services Law§ 383-c, Family Court may rehear the matter sua sponte, or upon petition by theagency, parent or attorney for the child (see Family Ct Act § 1055-a [a]).Assuming that the underlying application could thus have proceeded,[FN*]it appears that the adoption here was finalized during the pendency of this appeal.Therefore, the parties' rights will not be directly affected by our determination on thisissue and it is therefore moot (see Matter of Hearst Corp. v Clyne, 50 NY2d 707,714 [1980]; Matter of AmeilliaRR. [Megan SS.], 95 AD3d 1525, 1526 [2012]). Nor does the exception to themootness doctrine apply; while the issues may recur and are substantial, they are notlikely to evade review, as they could be preserved—where necessary andappropriate—by a stay of the adoption proceeding (see Matter of PatrickBB., 267 AD2d 853, 853-854 [1999]; see also Family Ct Act § 1114).
Peters, P.J., Stein and Spain, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: Although we do notreach this issue, the application here was arguably untimely, as such a petition by anattorney for the child is to be filed within 60 days following notification of the failure(see Family Ct Act § 1055-a [a]).