IN RE: JONATHAN W. (Anonymous).

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: JONATHAN W. (Anonymous). Commissioner of the Administration of Children's Services, Petitioner-Respondent; Michele W. (Anonymous), Appellant, et al., Respondent.

Decided: December 31, 2001

DAVID S. RITTER, J.P., LEO F. McGINITY, DANIEL F. LUCIANO and SANDRA J. FEUERSTEIN, JJ. Peter H. Dailey, New York, N.Y., for appellant. Michael D. Hess, Corporation Counsel, New York, N.Y. (Leonard Koerner and Pamela Seider Dolgow of counsel), for petitioner-respondent. Monica Drinane, New York, N.Y. (Patricia S. Colella of counsel), Law Guardian for the child.

In a neglect proceeding pursuant to Family Court Act article 10, the mother appeals from an order of the Family Court, Richmond County (McElrath, J.), dated June 23, 1998, which, after a hearing, denied her application pursuant to Family Court Act § 1028 for the return of her child and directed that the child remain in the custody of the Commissioner of the Administration of Children's Services pending the determination of the neglect petition.

ORDERED that the appeal is dismissed as academic, without costs or disbursements.

By order dated June 23, 1998, the Family Court, after a hearing, denied the mother's application pursuant to Family Court Act § 1028 for the return of her child and directed that the child remain in the custody of the Commissioner of the Administration of Children's Services (hereinafter the Commissioner) pending the determination of the neglect petition.   The Family Court found that there would be an imminent risk to the child's health if he were returned to the mother at that time.   The mother then failed to appear at the fact-finding hearing held on the neglect petition.   Upon her default, the Family Court found that she had neglected the child and directed that the child's placement in the custody of the Commissioner be continued.   The mother now appeals from the order dated June 23, 1998.

The appeal from so much of the order dated June 23, 1998, as directed that the child remain in the Commissioner's custody pending the determination of the neglect petition must be dismissed as academic, as that portion of the order was superseded by the placement subsequently directed upon the neglect petition.   Any corrective measures that this court might take concerning the Family Court's direction in the order dated June 23, 1998, as to the custody of the child would have no practical effect (see, Matter of C. Children, 249 A.D.2d 540, 672 N.Y.S.2d 134;  Matter of New York City Dept. of Social Servs. [Kalisha A.] v. Diognes T., 208 A.D.2d 844, 618 N.Y.S.2d 402).

Furthermore, the Family Court, upon determining the neglect petition, found that the mother had neglected the child, and that finding is not reviewable due to her default.   Therefore, the appeal insofar as it concerns the findings of fact underlying the denial of her application pursuant to Family Court Act § 1028 must be dismissed as academic as well (see, Matter of Eddie J., 273 A.D.2d 239, 709 N.Y.S.2d 439).

RITTER, J.P., McGINITY, LUCIANO and FEUERSTEIN, JJ., concur.

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