In re Rakim W.

Aug 23, 2004
Versions:10 A.D.3d 453
780 N.Y.S.2d 919
2004 N.Y. App. Div. LEXIS 10388

In a child protective proceeding pursuant to Family Court Act article 10, the mother appeals from an order of the Family Court, Dutchess County (Forman, J.), dated April 21, 2003, which, af ter a fact-finding hearing, found that she had neglected her child.

Ordered that the order is affirmed, without costs or disbursements.

Ordinarily, when a dispositional order has been entered in a proceeding pursuant to Family Court Act article 10, an appeal from the earlier fact-finding order must be dismissed as superseded (see Matter of Elishaba A., 269 AD2d 392 [2000]; Matter of Shoshana L., 239 AD2d 417 [1997]). Although the mother and even the Family Court Judge treated a document entitled “Amended Terms and Conditions of Orders [sic] of Disposition and ACD,” that the mother signed on May 7, 2003, when she waived a dispositional hearing, as an order of disposition, this document does not qualify as such. It is not signed by the Family Court Judge who stated on the transcript of that date that he would enter an order requiring the mother to comply with those terms and conditions. No such order exists in the record of this proceeding. Accordingly, since there is no order of disposition that would subsume the fact-finding order on appeal, there is no basis to dismiss this appeal.

The petitioner proved by a preponderance of the evidence (see Family Ct Act § 1046 [b]) that the subject child was a neglected child by reason of the failure of the mother to provide an adequate living environment for the child (see Family Ct Act § 1012 [f] [i] [A]; Matter of Baby Girl E., 306 AD2d 343 [2003]; Matter of A. Children, 189 AD2d 872 [1993]).

The mother’s remaining contentions are without merit. Santucci, J.P., Smith, Crane and Fisher, JJ., concur.