Opinion
536059
11-16-2023
In the Matter of MIRELY M., Appellant, v. WILBERT L., Appellant, et al., Respondent. (Proceeding No. 1.) In the Matter of Willow K., a Neglected Child. Schenectady County Department of Social Services, Respondent; v. Erica K., Respondent. Wilbert L., Appellant. (Proceeding No. 2.)
Sandra M. Colatosti, Albany, for appellants. Schenectady County Department of Social Services, Schenectady (Michael R. Godlewski of counsel), for Schenectady County Department of Social Services, respondent. Alexandra G. Verrigni, Rexford, attorney for the child.
Sandra M. Colatosti, Albany, for appellants.
Schenectady County Department of Social Services, Schenectady (Michael R. Godlewski of counsel), for Schenectady County Department of Social Services, respondent.
Alexandra G. Verrigni, Rexford, attorney for the child.
Before: Garry, P.J., Egan Jr., Aarons, McShan and Mackey, JJ.
MEMORANDUM AND ORDER
Mackey, J.
Appeals from an order of the Family Court of Schenectady County (Mark W. Blanchfield, J.), entered July 19, 2022, which (1) dismissed petitioner's application, in proceeding No. 1 pursuant to Family Ct Act article 6, for custody of the subject child, and (2) in proceeding No. 2 pursuant to Family Ct Act article 10, denied Wilbert L.’s motion to modify a prior order.
Respondent Erika K. (hereinafter the mother) and respondent Wilbert L. (hereinafter the father) are the biological parents of a child, who was born in February 2019 testing positive for amphetamines and Suboxone. Two days after the child's birth, petitioner Schenectady County Department of Social Services (hereinafter DSS) removed the child from the mother's care, placed her in a foster home, and commenced a neglect proceeding against the mother. The father, who has been incarcerated in a state correctional facility since before the child's birth, married petitioner Mirely M. (hereinafter the stepmother) in August 2019. In February 2020, the stepmother commenced a Family Ct Act article 6 proceeding seeking custody of the child. Shortly thereafter, the mother was adjudicated to have neglected the child, prompting the commencement of an abandonment proceeding seeking to terminate the mother's parental rights. In December 2020, the father made an oral motion pursuant to Family Ct Act § 1061 requesting that the order placing the child in foster care be modified to allow her to be placed with the stepmother, pursuant to Family Ct Act § 1017. Around the same time, the mother's parental rights were terminated for abandonment. Family Court consolidated the petitions and, after a lengthy fact-finding hearing, dismissed the stepmother's custody petition and denied the father's oral motion to modify the placement order. The court found that, although the stepmother established her standing to seek custody of the child by showing extraordinary circumstances, both she and the father failed to demonstrate that awarding primary physical custody to her would be in the child's best interests. Among other things, Family Court found that the child has thrived in the home of her foster parents – the only home she has ever known – and that the foster parents have the resources and skill sets to meet the child's needs. Family Court further found that the stepmother has an extensive history of substance abuse and mental health issues, an indicated history with DSS concerning an educational neglect issue and a history of threats of violence toward her own child. Accordingly, Family Court dismissed the stepmother's petition and denied the father's motion. Both of them appeal.
The father, who is incarcerated until at least 2025, established paternity of the child in October 2020.
This determination is not in issue.
The record reveals that after appealing, the father voluntarily surrendered his parental rights to the child. The father has not filed a notice of appeal in connection with his surrender of parental rights; indeed, no challenge to the voluntariness of that surrender has been brought to our attention. Accordingly, his appeal is moot (see Matter of David Q. v. Schoharie County Dept. of Social Servs., 199 A.D.3d 1179, 1180, 159 N.Y.S.3d 155 [3d Dept. 2021], lv denied 38 N.Y.3d 901, 2022 WL 806690 [2022] ; Matter of Alexus SS. [Chezzy SS.], 130 A.D.3d 1266, 1267, 14 N.Y.S.3d 202 [3d Dept. 2015] ) and we do not find the exception to the mootness doctrine to be applicable (see Matter of Randi NN. [Randi MM. – Joseph MM.], 80 A.D.3d 1086, 1087, 914 N.Y.S.2d 919 [3d Dept. 2011], lv denied 16 N.Y.3d 712, 2011 WL 1643552 [2011] ; see generally Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714–715, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980] ).
In November 2022, Family Court approved the surrender instrument executed by the father.
Insofar as the stepmother challenges Family Court's denial of the father's motion, she lacks standing to do so (see Family Ct Act § 1061 ).
As to the stepmother's appeal, where, as here, the parental rights of both biological parents have been terminated, "adoption is the sole and exclusive means to gain care and custody of the child" and courts are "without authority to entertain custody proceedings commenced by a member of the child's extended family" ( Melissa KK. v. Michael LL., 170 A.D.3d 1293, 1293, 95 N.Y.S.3d 618 [3d Dept. 2019] [internal quotation marks, brackets, ellipsis and citations omitted], lv denied 33 N.Y.3d 911, 2019 WL 4067238 [2019] ; see Matter of Amber W. v. Erie County Children's Servs., 185 A.D.3d 1445, 1445–1446, 126 N.Y.S.3d 836 [4th Dept. 2020] ). Here, the stepmother sought only custody of the child; she has not sought adoption. Accordingly, the appeal from denial of the stepmother's custody petition is also moot (see Matter of Mu'Min v. Mitchell, 19 A.D.3d 1116, 1117, 797 N.Y.S.2d 818 [4th Dept. 2005] ) and, contrary to the stepmother's argument, the exception to the mootness doctrine does not apply. Should she still seek care and custody of the child, the stepmother's sole recourse is to file for adoption (see Matter of Herbert PP. v. Chenango County Dept. of Social Servs., 299 A.D.2d 780, 781, 751 N.Y.S.2d 96 [3d Dept. 2002] ).
Although none of the parties initially addressed whether the stepmother's appeal has become moot, the Court raised that threshold issue, notified the parties and provided them with an opportunity to submit supplemental briefing concerning the same, which they have done.
Garry, P.J., Egan Jr., Aarons and McShan, JJ., concur.
ORDERED that the appeals are dismissed, as moot, without costs.