Suffolk Cty. Dep't of Soc. Serv. v. Robert M. (In re Nicholas M.)

205 N.Y.S.3d 150

In the MATTER OF NICHOLAS M. (Anonymous).

Suffolk County Department of Social Services, respondent;

v.Robert M. (Anonymous), appellant (and another proceeding).

Supreme Court, Appellate Division, Second Department, New York.

Submitted—December 1, 2023

February 7, 2024

Susan A. DeNatale, Bayport, NY, for appellant.

Dennis M. Brown, Acting County Attorney, Central Islip, NY (Jayne M. St. James of counsel), for respondent.

Laurette D. Mulry, Central Islip, NY (John B. Belmonte of counsel), attorney for the child.

VALERIE BRATHWAITE NELSON, J.P., JOSEPH J. MALTESE, HELEN VOUTSINAS, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 10, the father appeals from (1) a temporary order of protection of the Family Court, Suffolk County (Caren Loguercio, J.), dated October 22, 2021, (2) an order of the same court, also dated October 22, 2021, (3) a decision of the same court dated June 27, 2022, and (4) an order of fact-finding and disposition of the same court dated August 8, 2022. The temporary order of protection, inter alia, directed that the father have no contact with the subject child except for supervised parental access. The order dated October 22, 2021, among other things, directed the temporary removal of the subject child pursuant to Family Court Act § 1022. The order of fact-finding and disposition, insofar as appealed from, upon the decision, found that the father neglected the subject child.

ORDERED that the appeals from the temporary order of protection and the order dated October 22, 2021, are dismissed as academic; without costs or disbursements; and it is further,

[1] ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 509–510, 472 N.Y.S.2d 718); and it is further,

ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.

The petitioner commenced this proceeding against the father and a related proceeding against the mother alleging that they neglected the subject child, in that, among other things, they failed to provide the child with proper care, supervision, and guardianship. On October 22, 2021, prior to the filing of the petitions, the Family Court issued an order, inter alia, directing the temporary removal of the child pursuant to Family Court Act § 1022 and a temporary order of protection, among other things, directing that the father have no contact with the child except for supervised parental access. After a fact-finding hearing, in an order of fact-finding and disposition dated August 8, 2022, the court, inter alia, found that the father neglected the child. The father appeals from the temporary order of protection, the order dated October 22, 2021, and so much of the order of fact-finding and disposition as found that he neglected the child.

[2] The appeal from the temporary order of protection must be dismissed as academic because that order expired by its own terms and imposes no enduring consequences on the father (see Matter of Nicholas M. [Lisa B.], 211 A.D.3d 950, 951, 180 N.Y.S.3d 257).

[3] The appeal from the order dated October 22, 2021, directing the temporary removal of the child pursuant to Family Court Act § 1022 must be dismissed as academic because that order was superseded by the order of fact-finding and disposition (see Matter of Stephen L. [Patrick S.L.], 161 A.D.3d 1155, 1156, 77 N.Y.S.3d 347).

[4, 5] A party seeking to establish neglect must show, by a preponderance of the evidence, that the child’s...