SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

516 

CAF 10-00838 

PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND GREEN, JJ. 

 

IN THE MATTER OF ALEX A.C. 

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CATTARAUGUS COUNTY DEPARTMENT OF SOCIAL MEMORANDUM AND ORDER

SERVICES, PETITIONER-RESPONDENT; 

 

MARIA A.P., RESPONDENT-APPELLANT. 

CARR SAGLIMBEN LLP, OLEAN (JAY D. CARR OF COUNSEL), FOR

RESPONDENT-APPELLANT.

STEPHEN J. RILEY, OLEAN, FOR PETITIONER-RESPONDENT. 

GERALD M. DRISCOLL, ATTORNEY FOR THE CHILD, OLEAN, FOR ALEX A.C. 

 

Appeal from an order of the Family Court, Cattaraugus County

(Michael L. Nenno, J.), entered March 4, 2010 in a proceeding pursuant

to Family Court Act article 10. The order, inter alia, found that

respondent violated an order of protection and committed her to six

months in jail. 

It is hereby ORDERED that said appeal from the order insofar as 

it concerns commitment to jail is unanimously dismissed and the order

is otherwise affirmed without costs. 

Memorandum: Respondent mother appeals from an order finding that

she willfully violated an order of protection and committing her to a

jail term of six months. The commitment was stayed for a period of

one year on the condition that the mother not violate the order of

protection. We reject the mother’s contention that Family Court

violated Family Court Act § 1041 (a) by making findings of fact with

respect to a violation petition that was not timely served. 

In August 2009, petitioner filed a neglect petition alleging that

the subject child had been maltreated and was in danger of physical,

mental, and emotional harm due to the mother’s drug use, involvement

in violent crime, and willingness to continue an abusive relationship

with the child’s father. The court thereafter issued temporary orders

removing the child from the custody of the mother, requiring the

mother to stay away from the child, and ordering the mother to

prohibit any contact between the child and the father. At a hearing

in November 2009, petitioner offered to return custody of the child to

the mother provided that she have no contact with the father and that

she prohibit any contact between the child and the father. The mother

agreed to those conditions, and the court issued an order of
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CAF 10-00838 

protection to that effect. Five days later, petitioner sought to

restore the matter to the calendar on the ground that the mother had

violated the order of protection, and a hearing on the previously

filed neglect petition ensued. The mother was present and represented

by counsel, and a police officer testified on behalf of petitioner

that, on November 6, 2009, he stopped a vehicle containing the mother,

the father, and the subject child. During the pendency of the neglect

proceedings, petitioner filed an amended neglect petition that

reiterated the prior allegations and included the additional

allegation that the mother, the father, and the child were together on

November 6, 2009, in violation of the order of protection. The same

day, petitioner also filed a violation petition, alleging that the

mother willfully violated the November 5, 2009 order of protection

both by having contact with the father and by allowing the father to

have contact with the child on November 6, 2009. The mother was

served with the violation petition when the hearing on the neglect

petition resumed on November 23, 2009 and, at the conclusion of that

hearing, which became in effect a combined neglect/violation hearing,

the court found that the mother willfully violated the order of

protection. The record thus establishes that the mother had notice of

petitioner’s allegation that she violated the order of protection,

that the mother was present during the neglect/violation hearing, and

that she was served with the violation petition at the continued

neglect hearing prior to the issuance of the court’s findings of fact. 

We therefore conclude that, contrary to the mother’s contention, the

court did not violate her due process right to notice or her statutory

rights pursuant to Family Court Act § 1041 (a) (see generally Matter

of Anita J.F., 267 AD2d 1044, lv denied 94 NY2d 762).

The mother further contends that the court lacked the authority

under Family Court Act § 1072 to commit her to a jail term because the

November 5, 2009 order was not an “order of supervision.” We agree

with petitioner, however, that the mother’s contention is moot

inasmuch as the commitment portion of the order has expired by its own

terms (see generally Matter of Lomanto v Schneider, 78 AD3d 1536,

1537; Matter of Johnson v Boone, 289 AD2d 938). We therefore dismiss

the mother’s appeal from that part of the order. 

Entered: April 29, 2011 Patricia L. Morgan

Clerk of the Court