SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
276
CAF 12-01926
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND VALENTINO, JJ.
IN THE MATTER OF DASHAUN G. AND DESHAUN G.
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MONROE COUNTY DEPARTMENT OF HUMAN SERVICES,
PETITIONER-RESPONDENT;
MEMORANDUM AND ORDER
DIANA B., RESPONDENT.
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JONATHAN G., INTERVENOR-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR INTERVENOR-APPELLANT.
MERIDETH SMITH, COUNTY ATTORNEY, ROCHESTER (CAROL L. EISENMAN OF
COUNSEL), FOR PETITIONER-RESPONDENT.
TANYA J. CONLEY, ATTORNEY FOR THE CHILDREN, ROCHESTER.
Appeal from an order of the Family Court, Monroe County (Patricia
E. Gallaher, J.), entered September 12, 2012 in a proceeding pursuant
to Family Court Act article 10. The order, among other things, placed
Dashaun G. in the custody of petitioner.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Intervenor father appeals from an order that placed
the older child (hereafter, child) with petitioner following a period
of trial placement with the father. We note at the outset that this
appeal is moot because a subsequent permanency order continuing
placement of the child in the custody of petitioner has been issued
(see Matter of Cleophus B. [Torrence B.], 93 AD3d 1241, 1242, lv
denied 19 NY3d 807). We conclude, however, that the exception to the
mootness doctrine applies (see id.).
Shortly after his birth, the child was placed with petitioner
pursuant to a neglect proceeding against only respondent mother.
Family Court adjudicated the child to be neglected by the mother and
subsequently issued an order placing the child with the father under
petitioner’s supervision (see Family Ct Act § 1054 [a]). When the
placement with the father deteriorated due to, among other things, the
father’s refusal to afford petitioner access to the child’s home and
misinformation given by the father concerning caregivers for the child
when the father was at work, petitioner and the father reached an
agreement on the record at a permanency hearing to impose additional
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CAF 12-01926
conditions with which he agreed and was required to comply. The
record specifically reflects that the father agreed, inter alia, to
provide proof of income sufficient to prove that he has the means to
care for the child; to obtain his own residence; to prohibit the child
from being left in the care of a certain woman with a criminal
history; to place the child in daycare when he worked; to allow
petitioner access to his home; and to terminate any relationship with
a person involved in the “prostitution industry.” The court adjourned
the permanency hearing for two weeks to monitor the father’s
compliance with those additional conditions. Before those conditions
were reduced to a written order, petitioner alleged in an order to
show cause that the father violated them and that the child was in
imminent risk in his care. Pending a hearing on the order to show
cause, the court issued an order returning the child to placement with
petitioner. Following a hearing, the court issued the permanency
order on appeal, finding that the child would be in imminent risk of
harm if returned to the father and that the father violated the above
conditions, and continuing the child’s placement with petitioner.
At the outset, we note that, although no written order was issued
setting forth the additional conditions, the transcript of the
proceeding reflects that the father was present with counsel and
stipulated to the imposition of those additional conditions in open
court, and those conditions therefore are binding upon him regardless
of whether they were reduced to a written order (see generally Matter
of Lagano v Soule, 86 AD3d 665, 667; Matter of W. Children, 226 AD2d
385, 386-387, lv denied 88 NY2d 811).
The father contends that the court abridged his fundamental
parental rights and violated his right to equal protection by removing
the child from placement with him without requiring petitioner to
commence a neglect proceeding pursuant to Family Court Act article 10.
We reject that contention. By its order to show cause, petitioner
sought modification of the placement based upon the father’s violation
of the additional conditions to which he was bound. The father was
subject to the supervision of petitioner and, when he violated the
supervision order as modified by the additional conditions, petitioner
was entitled to seek removal of the child by way of revocation of the
order of supervision (see §§ 1054, 1072, 1089 [d] [2] [viii] [C]). We
conclude that petitioner established by a preponderance of the
evidence that the father violated those additional conditions to which
he stipulated to be bound and that his violation was willful (see
Matter of Aimee J., 34 AD3d 1350, 1350-1351; Matter of Linda FF., 301
AD2d 887, 888-890; cf. Matter of Brittany T., 48 AD3d 995, 997).
Although the court erred in stating that it was proceeding pursuant to
Family Court Act §§ 1061 and 1089 and not Family Court Act § 1072, in
the absence of any showing of prejudice, we consider that technical
defect to be harmless error (see CPLR 2001; Matter of Rachel G., 185
AD2d 382, 383-384). The father’s similar contentions with regard to
another child are unpreserved for our review (see generally Matter of
Longo v Wright, 19 AD3d 1078, 1079) and, in any event, are likewise
without merit.
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CAF 12-01926
Entered: May 9, 2014 Frances E. Cafarell
Clerk of the Court