SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

367 

CAF 10-02163 

PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ. 

 

IN THE MATTER OF CLEOPHUS B. 

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ONEIDA COUNTY DEPARTMENT OF SOCIAL SERVICES, 

PETITIONER-RESPONDENT; 

 MEMORANDUM AND ORDER

ERIKA B., RESPONDENT. 

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TORRENCE B., APPELLANT. 

PETER J. DIGIORGIO, JR., UTICA, FOR APPELLANT. 

DENISE J. MORGAN, UTICA, FOR PETITIONER-RESPONDENT. 

JOHN G. KOSLOSKY, ATTORNEY FOR THE CHILD, UTICA, FOR CLEOPHUS B. 

 

Appeal from an order of the Family Court, Oneida County (James R.

Griffith, J.), entered September 30, 2010 in a proceeding pursuant to

Family Court Act article 10. The order, among other things, adjudged

that it is in the best interests of the subject child to remain in the

custody of petitioner. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Appellant father appeals from an order that

continued placement of the child in the custody of petitioner. We

note at the outset that this appeal is moot in light of the subsequent

permanency orders continuing placement of the child in the custody of

petitioner (see Matter of Dustin B., 71 AD3d 1426, 1427). We

conclude, however, that the exception to the mootness doctrine applies

herein (see Matter of Latanya H., 89 AD3d 1528, 1529; see generally

Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715). 

Family Court adjudicated the child to be neglected by respondent

mother, but we affirmed an order dismissing the petition insofar as it

alleged that the father derivatively neglected the child (Matter of

Cleophus M.B., 90 AD3d 1512). The father moved for summary judgment

seeking to vacate the order of placement of the child in petitioner’s

custody and to award him immediate custody. The court denied the

motion, determining that the father failed to allege any facts

demonstrating his present ability to care for the child, and the court

then conducted a hearing. Both the Attorney for the Child and

petitioner raised the issue of extraordinary circumstances at the

hearing. After the hearing, the court determined that extraordinary
-2- 367 

CAF 10-02163 

circumstances did not exist to continue placement of the child in

petitioner’s custody and released the child to the father’s custody. 

The court, however, placed the father under the supervision of

petitioner and ordered the father to comply with, inter alia, random

drug and alcohol testing. It is undisputed that the father failed to

comply with the drug testing, whereupon the court entered the order

that is currently before us on appeal.

Initially, we reject the father’s contention that the court erred

in denying his motion for summary judgment. The court denied the

motion and held the hearing so that the father could “make a basic

showing of an ability to provide for the child’s needs.” Considering

that the child had been in foster care for nine months prior to the

motion, we conclude that it was proper for the court to hold a hearing

to determine if the father was entitled to custody of the child (see

Matter of Alex LL. v Albany County Dept. of Social Servs., 270 AD2d

523, 527).

The father contends that, because the court dismissed the neglect

petition against him, the court was without jurisdiction to impose

conditions on his behavior through an order of supervision and to make

compliance with those conditions a prerequisite to returning the child

to his care and custody. We reject that contention. Upon determining

that the mother had neglected the child, the court issued an order of

disposition pursuant to Family Court Act § 1054 (a). That statute

provides in relevant part that, “[i]f the order of disposition

releases the child to the custody of his or her parent or other person

legally responsible for his or her care at the time of the filing of

the petition, the court may place the person to whose custody the

child is released under supervision of a child protective agency or of

a social services official or duly authorized agency . . . .” 

Contrary to the father’s contention, the fact that there was no

finding of neglect against him is of no moment inasmuch as “ ‘[t]he

parent or other person legally responsible to whose custody the child

is released need not be the respondent’ ” (Matter of Kahira C., 269

AD2d 840, 841, lv denied 95 NY2d 751; see also Matter of Christina

I., 226 AD2d 789, lv denied 88 NY2d 808). 

Entered: March 16, 2012 Frances E. Cafarell

Clerk of the Court