| Matter of Abbygail G. (Christine Y.—KarenM.) |
| 2019 NY Slip Op 08406 [177 AD3d 878] |
| November 20, 2019 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Abbygail G. Orange CountyDepartment of Social Services, Respondent; Christine Y., Appellant. Karen M.,Nonparty Respondent. (Proceeding No. 1.) In the Matter of Abbygail G. Orange CountyDepartment of Social Services, Respondent; Christine Y., Appellant, et al., Respondents.Karen M., Nonparty Respondent. (Proceeding No. 2.) |
Kelli M. O'Brien, Goshen, NY, for appellant.
Langdon C. Chapman, County Attorney, Goshen, NY (Linda P. DaSilva of counsel),for petitioner-respondent.
Christine F. Stage, Warwick, NY, for nonparty-respondent.
Mark Specthrie, Middletown, NY, attorney for the child.
In related proceedings pursuant to Family Court Act article 10, the mother appealsfrom (1) an order of the Family Court, Orange County (Lori Currier Woods, J.), datedNovember 2, 2018, and (2) an order of the same court dated December 20, 2018. Theorder dated November 2, 2018, temporarily removed the subject child from the mother'scustody and placed the child in the temporary custody of the petitioner. The order datedDecember 20, 2018, insofar as appealed from, terminated the temporary custody of thesubject child with the petitioner and placed the child in the temporary custody ofnonparty Karen M. pursuant to Family Court Act § 1017.
Ordered that the appeals are dismissed as academic, without costs ordisbursements.
Christine Y. (hereinafter the mother) is the biological mother of the subject child. InOctober 2018, the petitioner, Orange County Department of Social Services (hereinafterDSS), effectuated an emergency removal of the child and commenced a neglectproceeding against the mother. Following the child's removal, the child was placed in thecustody of DSS pending further proceedings. At a preliminary conference on October 25,2018, the Family Court, inter alia, ordered an expedited investigation pursuant to theInterstate Compact for the Placement of Children (hereinafter ICPC) regarding nonpartyKaren M., the child's former foster parent, who had adopted the child's older half-sibling,and who, at that time, resided in the State of Washington. At a subsequent hearing onNovember 2, 2018, the court, inter alia, again ordered an expedited ICPC investigation ofKaren M. The court issued an order dated November 2, 2018, temporarily removing thechild from the mother's custody and placing the child in the temporary custody of DSS.The court also issued an order permitting the child to travel to and visit in the home ofKaren M. in Washington until December 6, 2018. While the child was present inWashington, DSS advised the court that Washington was unwilling to conduct anexpedited ICPC investigation for a variety of procedural reasons. DSS recommended thatthe court direct the return of the child to New York, and asked the court to advance thematter to discuss whether a new ICPC application should be submitted. The court keptthe previously scheduled date of December 6, 2018. On the same day, an appearance on asecond petition, alleging neglect and abuse of a number of children by the mother andothers, was scheduled. The mother did not appear in court that day. The court conductedan in camera interview with the child, who had returned to New York with Karen M.Following the in camera interview, the court terminated custody of the child with DSSand awarded Karen M. temporary custody pursuant to Family Court Act§ 1017. The court allowed the child to return to Washington withoutcomplying with the procedures set forth in the ICPC, with the understanding that theout-of-state placement would be temporary because Karen M. was planning to relocate toNew York in March 2019. In an order dated December 20, 2018, the court memorializedits oral decision and ordered, inter alia, that pending further proceedings, Karen M.submit to the court's jurisdiction, on consent, and that DSS maintain telephone contactwith Karen M. for the purpose of obtaining updates on the child's well-being. Theseappeals by the mother ensued.
In an order of fact-finding and disposition entered September 12, 2019, the motherconsented to a finding of neglect, thereby resolving both proceedings against her. TheFamily Court placed the child back in the custody of DSS after the child returned to NewYork in or about April 2019, which was memorialized in an order of fact-finding anddisposition.
"It is a fundamental principle of [this Court's] jurisprudence that the power of a courtto declare the law only arises out of, and is limited to, determining the rights of personswhich are actually controverted in a particular case pending before the tribunal" (Matter of Angel S. [SadetianaJ.], 173 AD3d 1188, 1189 [2019] [internal quotation marks omitted]). "Thisprinciple, which forbids courts to pass on academic, hypothetical, moot, or otherwiseabstract questions, is founded both in constitutional separation-of-powers doctrine, andin methodological strictures which inhere in the decisional process of a common-lawjudiciary" (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713-714 [1980]).Thus, "[t]he mootness doctrine precludes courts from considering questions which,although once active, have become academic by the passage of time or by a change incircumstances" (Matter ofMelinda D., 31 AD3d 24, 28 [2006]; see Matter of Angel S. [SadetianaJ.], 173 AD3d at 1189).
"If academic, an appeal is not to be determined unless it falls within the exception tothe doctrine that permits courts to preserve for review important and recurring issueswhich, by virtue of their relatively brief existence, would otherwise be nonreviewable"(Matter of Melinda D., 31 AD3d at 28). "The exception to the mootness doctrinerequires the existence of three common factors: (1) a likelihood the issue will repeat,either between the same parties or among other members of the public, (2) an issue orphenomenon typically evading appellate review, and (3) a showing of significant orimportant questions not previously passed upon" (id.).
Here, the issue of whether the child's temporary out-of-state placement withoutcompliance with the procedures set forth in the ICPC constituted a violation of the ICPChas been rendered academic by a change in circumstances (see Matter of MelindaD., 31 AD3d at 27-28). It is undisputed that the child has returned to New York andthat DSS has regained custody of the child. Thus, the parties' rights would not "bedirectly affected by the determination of the appeal[s]" (Matter of Hearst Corp. vClyne, 50 NY2d at 714; seeMatter of Angel S. [Sadetiana J.], 173 AD3d 1188 [2019]). Contrary to themother's contention, this case does not present an exception to the mootness doctrine (see Matter of Jamela B., 28AD3d 478, 479 [2006]; cf. Matter of Melinda D., 31 AD3d at 28).
Accordingly, we dismiss the appeals from the order dated November 2, 2018, and theorder dated December 20, 2018, as academic. Dillon, J.P., Cohen, Miller and Iannacci,JJ., concur.