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In the Matter of Logan Bb. and v. Michelle Dd

State of New York Supreme Court, Appellate Division Third Judicial Department


March 10, 2011

IN THE MATTER OF LOGAN BB. AND ANOTHER, ALLEGED TO BE NEGLECTED CHILDREN. TOMPKINS COUNTY DEPARTMENT OF SOCIAL SERVICES,
RESPONDENT;
v.
MICHELLE DD., APPELLANT.

Appeal from an order of the Family Court of Tompkins County (Ames, J.), entered March 2, 2009, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 10, to adjudicate respondent's children to be neglected.

The opinion of the court was delivered by: Mercure, J.P.

MEMORANDUM AND ORDER

Calendar Date: February 10, 2011

Before: Mercure, J.P., Rose, Malone Jr., Stein and McCarthy, JJ.

Respondent is the mother of Logan BB. (born in 2007) and Rhiannon CC. (born in 2004). Petitioner commenced a neglect proceeding against her in April 2008. Respondent thereafter consented to an adjudication of neglect against her, as well as an order in a related custody proceeding that awarded physical custody of Logan to his father. Following a hearing, Family Court issued an order of disposition that, among other things, declined to place Logan or continue him under petitioner's supervision given the custody order, and continued Rhiannon's placement in foster care. Respondent now appeals.

Respondent's counsel seeks to be relieved of her assignment, arguing that no non-frivolous appellate issues exist. Inasmuch as respondent consented to the adjudication of neglect, she is not aggrieved by those findings and may not raise issues related to them (see Matter of Elijah Q., 36 AD3d 974, 975 [2007], lv denied 8 NY3d 809 [2007]; Matter of Amber VV., 22 AD3d 967, 968 [2005], lv denied 6 NY3d 708 [2006]). Furthermore, respondent's claim that she did not appreciate the consequences of her consent is unpreserved because she failed to seek vacatur of the fact-finding order in Family Court (see Matter of Brittany T., 48 AD3d 995, 997 [2008]; Matter of Cheyenne QQ., 37 AD3d 977, 978 [2007]). Any challenge to the order of disposition itself is moot, inasmuch as respondent is no longer under petitioner's supervision and Rhiannon has been returned to her care (see Matter of June MM., 62 AD3d 1216, 1218 [2009], lv denied 13 NY3d 704 [2009]; Matter of Lashina P., 52 AD3d 293, 293 [2008]). This appeal must accordingly be dismissed, rendering counsel's application to be relieved of her assignment academic (see Matter of Marshall v Haas, 74 AD3d 1593, 1594 [2010]).

Rose, Malone Jr., Stein and McCarthy, JJ., concur.

ORDERED that the appeal is dismissed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110310

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