        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

267
CAF 09-02488
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF ALEXANDER M.
--------------------------------------------
ONEIDA COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;                           MEMORANDUM AND ORDER

CINDY M., RESPONDENT,
AND MICHAEL M., RESPONDENT-APPELLANT.


PETER J. DIGIORGIO, JR., UTICA, FOR RESPONDENT-APPELLANT.

DENISE J. MORGAN, UTICA, FOR PETITIONER-RESPONDENT.

A.J. BOSMAN, ATTORNEY FOR THE CHILD, ROME, FOR ALEXANDER M.


     Appeal from an order of the Family Court, Oneida County (Joan E.
Shkane, J.), entered November 23, 2009 in a proceeding pursuant to
Family Court Act article 10. The order, among other things, adjudged
that respondent father had neglected the subject child and ordered
that the subject child remain in the care and custody of petitioner.

     It is hereby ORDERED that said appeal insofar as it concerned
disposition is unanimously dismissed and the order is otherwise
affirmed without costs.

     Memorandum: Respondent father appeals from an order adjudicating
the child at issue in this appeal to be a neglected child. We agree
with the father that Family Court erred in finding that the child was
neglected based on his purported threats to remove the child from the
hospital, which he made during a telephone call to hospital staff.
The evidence of those purported threats did not establish that the
child’s “physical, mental or emotional condition . . . [was] in
imminent danger of becoming impaired” (Family Ct Act § 1012 [f] [i];
see Nicholson v Scoppetta, 3 NY3d 357, 369; see also Matter of Anna
F., 56 AD3d 1197, 1198; Matter of Casey N., 44 AD3d 861, 862). We
conclude, however, that the court properly found that the father
neglected the child based on his continued failure to address his
illegal drug use. The prior orders in this proceeding detail the
father’s long-standing inability or refusal to deal with his drug
usage (see Matter of Carlena B., 61 AD3d 752, lv denied 13 NY3d 703;
Matter of Douglas QQ., 273 AD2d 711, 713; see generally Matter of
Nassau County Dept. of Social Servs. v Denise J., 87 NY2d 73, 78-80).
The court stated that it would take judicial notice of those prior
orders, and the father did not object (see Matter of Kayla J., 74 AD3d
1665, 1667-1668; Matter of Andrew U., 22 AD3d 926, 926-927; Matter of
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                                                         CAF 09-02488

Catherine KK., 280 AD2d 732, 734). Finally, the father’s appeal from
the order insofar as it concerned disposition is moot, inasmuch as
superseding permanency orders have since been entered (see Matter of
Dustin B., 71 AD3d 1426; see also Matter of Giovanni K., 62 AD3d 1242,
lv denied 12 NY3d 715).




Entered:   April 1, 2011                       Patricia L. Morgan
                                               Clerk of the Court
