Opinion
07-20-2017
In the Matter of ANGEL RR. and Another, Neglected Children. Sullivan County Department of Social Services, Respondent; Gloria RR., Respondent. Pedro RR., Appellant.
Cliff Gordon, Monticello, for appellant. Constantina Hart, Sullivan County Department of Social Services, Monticello, for Sullivan County Department of Social Services, respondent. Jane M. Bloom, Monticello, attorney for the child.
Cliff Gordon, Monticello, for appellant.
Constantina Hart, Sullivan County Department of Social Services, Monticello, for Sullivan County Department of Social Services, respondent.
Jane M. Bloom, Monticello, attorney for the child.
Before: McCARTHY, J.P., GARRY, EGAN JR., DEVINE and CLARK, JJ.
DEVINE, J.
Appeal from an order of the Family Court of Sullivan County (McGuire, J.), entered June 21, 2016, which, in a proceeding pursuant to Family Ct. Act articles 10 and 10–A, continued the permanency plan for the subject children.
Pedro RR. (hereinafter the father) and Gloria RR. (hereinafter the mother) are the parents of two children born in 2002 and 2004. Family Court determined in 2005 that the father had neglected the subject children and others and, as a result, issued an order of protection in favor of the children (Matter of Stephanie RR. [Pedro RR.], 140 A.D.3d 1237, 1237–1238, 32 N.Y.S.3d 700 [2016] ). Upon an appeal from a subsequent permanency hearing order, the father challenged the aforementioned order of protection and we held, among other things, that he could not properly do so in that context (Matter of Angel RR. [Gloria RR.–Pedro RR.], 145 A.D.3d 1136, 1137–1138, 41 N.Y.S.3d 439 [2016] ). While that appeal was pending, another permanency hearing was held in May 2016 at which the father requested that Family Court allow him visitation. Family Court declined to do so due to the order of protection, but invited the father to move for modification of the order of protection if circumstances changed. Family Court thereafter issued a permanency hearing order from which the father appeals, arguing solely that the existing order of protection should be modified.
The "appropriate avenue for remedying ... [an] order of protection ... [is either] a timely appeal" from such order (Matter of Anderson v. Anderson, 9 A.D.3d 619, 620, 779 N.Y.S.2d 667 [2004] ) or a motion seeking modification pursuant to Family Ct. Act § 1061 (see Matter of Matthew W. v. Sandra W., 291 A.D.2d 693, 694, 737 N.Y.S.2d 439 [2002] ). Thus, inasmuch as the father cannot challenge an order of protection within the context of an appeal from a permanency hearing order, the appeal must be dismissed (see Matter of Angel RR. [Gloria RR.–Pedro RR.], 145 A.D.3d at 1137–1138, 41 N.Y.S.3d 439 ).
ORDERED that the appeal is dismissed, without costs.
McCARTHY, J.P., GARRY, EGAN JR. and CLARK, JJ., concur.