Opinion
06-09-2017
In the Matter of NEVAEH T. Erie County Department of Social Services, Petitioner–Respondent; Abreanna T., Respondent, and Wilbert J., III, Respondent–Appellant. (Appeal No. 1.).
Timothy R. Lovallo, Buffalo, for Respondent–Appellant. Charles J. Gallagher, Jr., Buffalo, for Petitioner–Respondent. Noemi Fernandez, Attorney for the Child, Buffalo.
Timothy R. Lovallo, Buffalo, for Respondent–Appellant.
Charles J. Gallagher, Jr., Buffalo, for Petitioner–Respondent.
Noemi Fernandez, Attorney for the Child, Buffalo.
PRESENT: CENTRA, J.P., LINDLEY, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM:
Petitioner commenced these neglect proceedings against Wilbert J., III (respondent) and respondent mother alleging, inter alia, that respondent neglected the two children who are the subject of these proceedings and are the mother's children. The mother admitted that she neglected the children, and orders were issued granting her an adjournment in contemplation of dismissal, with expiration dates of March 26, 2015. The petitions against respondent proceeded to a hearing, after which Family Court issued an order finding that respondent was a parent substitute who was responsible for the children's care and finding that he neglected the children. After a dispositional hearing, the court issued orders of protection in favor of the children until their 18th birthdays.
We note at the outset that, although respondent failed to file a timely notice of appeal with respect to the order of fact-finding, he appealed from the combined dispositional/orders of protection (see Matter of Dylynn V. [Bradley W.], 136 A.D.3d 1160, 1161, 26 N.Y.S.3d 369 ), which bring up for review the propriety of the fact-finding order (see Matter of Bradley M.M. [Michael M.–Cindy M.], 98 A.D.3d 1257, 1258, 951 N.Y.S.2d 604 ). Contrary to respondent's contention, however, the court properly found that he was a person legally responsible for the care of the children (see Matter of Angel R. [Syheid R.], 136 A.D.3d 1041, 1041, 26 N.Y.S.3d 318, lv.
dismissed 27 N.Y.3d 1045, 33 N.Y.S.3d 869, 53 N.E.3d 747 ; Matter of Donell S. [Donell S.], 72 A.D.3d 1611, 1611–1612, 900 N.Y.S.2d 217, lv. denied 15 N.Y.3d 705, 2010 WL 3431042 ; see generally Matter of Trenasia J. [Frank J.], 25 N.Y.3d 1001, 1004–1005, 10 N.Y.S.3d 162, 32 N.E.3d 377 ). The testimony at the hearing established that respondent was at the mother's residence on at least a regular basis, if not actually living there.
We agree with respondent that the court erred in issuing orders of protection that did not expire until the children's 18th birthdays. Pursuant to Family Court Act § 1056(1), the court may issue an order of protection in an article 10 proceeding, but such order of protection shall expire no later than the expiration date of "such other order made under this part, except as provided in subdivision four of this section." Subdivision (4) allows a court to issue an order of protection until a child's 18th birthday, but only against a person "who was a member of the child's household or a person legally responsible ..., and who is no longer a member of such household at the time of the disposition and who is not related by blood or marriage to the child or a member of the child's household." Here, respondent was found to be a person legally responsible for the children and, at the time of the dispositional hearing, he no longer lived with the mother. He is also not related by blood or marriage to the children, but he is related to a member of their household. Petitioner's caseworker testified at the dispositional hearing that respondent was the father of the mother's recently-born child, who lived in the mother's home. Subdivision (4) is therefore inapplicable on its face (see Matter of Alexis A. [Richard V.], 143 A.D.3d 700, 701, 38 N.Y.S.3d 432 ). Inasmuch as the only other dispositional orders issued with respect to the children at the time the court issued the orders of protection had expiration dates of March 26, 2015, we modify the orders of protection issued in these proceedings to expire on that same date.
We have considered respondent's remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by deleting the expiration date of the order of protection and substituting therefor an expiration date of March 26, 2015, and as modified the order is affirmed without costs.