Opinion
191 SSM 23.
Decided October 25, 2005.
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered February 17, 2005. The Appellate Division dismissed the appeal from an order of the Family Court, New York County (Jody Adams, J.), which had granted, in a child neglect proceeding, respondent mothers' motion, joined in by respondent father and the law guardian, to dismiss the petition.
In this neglect proceeding, the Administration for Children's Services alleged that respondent parents had failed to protect their younger son from being sexually abused by their older son. Subsequent to the appeal from the order of Family Court the older son was incarcerated as a result of his earlier conviction of incest, and the Appellate Division dismissed the appeal, concluding that a change in circumstances had removed the underlying basis for the petition and rendered the appeal moot.
Matter of Kirk V., 15 AD3d 285, reversed.
Michael A. Cardozo, Corporation Counsel, New York City ( Suzanne K. Colt of counsel), for appellant.
Lansner Kubitschek, New York City ( Carolyn A. Kubitschek of counsel), for Providencia V., respondent.
Wendy Abels, New York City, for Ricardo V., respondent.
Wolf, Block, Schorr and Solis-Cohen LLP, New York City ( Kenneth G. Roberts and Jill L. Mandell of counsel), for Lawyers for Children, Inc., Law Guardian.
Before: Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur in memorandum.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be reversed, without costs, and the matter remitted to that Court for consideration of the appeal.
The incarceration of respondent parents' older son was not a change in circumstances rendering the appeal from the dismissal of the neglect petition moot. Where "a judicial determination carries immediate, practical consequences for the parties, the controversy is not moot" ( Saratoga County Chamber of Commerce v. Pataki, 100 NY2d 801, 812). The older child's incarceration did not affect the issue underlying the neglect petition — respondent parents' alleged failure to protect the younger child. The outcome of the neglect petition carries potential consequences for respondent parents as well as the younger child ( see e.g. Matter of Alijah C., 1 NY3d 375).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order reversed, etc.