Introduction

In In the Matter of Ava OO. and Others, 2025 N.Y. Slip Op. 1022 (3d Dept Feb. 20, 2025), the Appellate Division, Third Department (Egan Jr., J.P.), affirmed a Family Court dispositional order continuing the placement of the youngest of four children in the care of the Sullivan County Department of Social Services (DSS) and requiring the father, Michael NN., to obtain sex offender treatment until “positive, therapeutic discharge.” The case arises from neglect proceedings under Family Court Act (FCA) article 10 following a hotline report alleging domestic violence and sexual abuse. Although DSS agreed in an earlier settlement to “take no position” on returning the youngest child if the father completed a sex offender evaluation and followed recommendations, Family Court concluded the father’s one-page, non-specialist risk “evaluation” was not the “thorough” assessment contemplated by the parties’ agreement and the court’s fact-finding order.

The decision addresses three principal issues: (1) appealability of a dispositional order after a consent fact-finding; (2) the adequacy of a sex offender evaluation required by a settlement and embodied in a fact-finding order; and (3) the court’s independent best-interests authority notwithstanding an agency’s stipulated neutrality. It also briefly touches on procedural limits to obtaining affirmative relief without an appeal and the mootness of an expired order of protection.

Parties and counsel included the Sullivan County Department of Social Services (respondent), the father (appellant), the mother (not appealing), and two attorneys for the children. The calendar date was January 15, 2025; the decision issued February 20, 2025.

Summary of the Opinion

The Third Department affirmed the dispositional order. It held:

• Appealability: Although an order entered on consent (the October 2022 fact-finding order) is not appealable, the father could appeal the subsequent dispositional order because he did not consent to its terms.
• Best interests and record support: The dispositional outcome was supported by a sound and substantial basis in the record. The father’s one-page “sex offender evaluation” by a county social worker—who was neither the named evaluator nor clearly “similarly credentialed,” and who left critical portions incomplete—did not satisfy the settlement’s requirement for a thorough assessment or demonstrate engagement in recommended treatment.
• Effect of consent finding: By consenting to a neglect finding under FCA § 1051, the father accepted that the allegations in the petition, including the sexual abuse allegation, would be treated as if proven for dispositional purposes.
• Agency neutrality does not bind the court: Even though DSS honored its stipulation to “take no position,” Family Court retained—and exercised—its independent duty to determine disposition in the child’s best interests.
• Mootness: The challenge to an order of protection was moot because the order expired in July 2024.
• Procedural bar on affirmative relief: The attorney for the child could not obtain affirmative relief on an issue (funding under County Law § 722-c) because she was not an appealing party.

Detailed Analysis

Factual and Procedural Background

DSS filed article 10 petitions alleging abuse and neglect after reports of the father’s domestic violence against the mother and sexual abuse of the eldest child. The children were temporarily removed. In October 2022, the parties settled: both parents consented to findings of neglect without admission; DSS withdrew the abuse allegations but required, as part of the negotiated terms embodied in the amended fact-finding order, that the father complete a sex offender evaluation by a named evaluator or a “similarly credentialed practitioner” aware of the allegations, and then follow all recommendations “until positive discharge.” DSS further stipulated it would take “no position” on returning the youngest child if those steps were completed, leaving disposition to Family Court’s discretion.

The father struggled to fund the named evaluator and sought public payment under County Law § 722-c. Family Court denied that request without prejudice for failing to meet statutory requirements. He then obtained an April 2023 mental health assessment, including a sex offender component, from a county social worker (not the named evaluator). That document assessed him as “below average” risk but was a one-page form with a key section left blank—specifically, the portion stating whether the score fairly represented his risk. At the May 2023 dispositional hearing, DSS reiterated its neutrality consistent with the settlement, but the Family Court found the assessment inadequate and noted the absence of any sex offender treatment engagement. The court continued placement, imposed an order of protection (supervised contact only), and required sex offender treatment until positive discharge. The father appealed, focusing on the youngest child’s disposition and the treatment directive.

Precedents and Authorities Cited

• Hecht v City of New York, 60 N.Y.2d 57 (1983): A non-appealing party cannot obtain affirmative relief. Applied here to the attorney for the child’s attempt to challenge the denial (without prejudice) of the father’s County Law § 722-c application.
• Matter of Drey L. [Katrina M.], 227 A.D.3d 1134 (3d Dept 2024): Reinforces Hecht in the Family Court context; cited in a footnote to reject the child’s attorney’s bid for affirmative relief.
• Matter of Adam O. v Tracie P., 188 A.D.3d 1312 (3d Dept 2020): Orders entered upon consent are not appealable. Distinguishes the non-appealability of the October 2022 consent fact-finding order.
• Matter of Adam V. v Ashli W., 180 A.D.3d 1205 (3d Dept 2020): A party may appeal a later order where they did not consent to its terms. Supports the father’s right to appeal the July 2023 dispositional order.
• Matter of Jaylin XX. [Jamie YY.], 216 A.D.3d 1224 (3d Dept 2023): Dispositional orders must reflect the child’s best interests and have a sound and substantial basis in the record. Sets the standard of review.
• Matter of Tristen S. [Thomas S.], 216 A.D.3d 1237 (3d Dept 2023): Confirms best-interests analysis and appellate deference to Family Court’s factual findings; also cited “at 1242” for similar remedial conditions.
• Matter of Jamel HH. [Linda HH.], 155 A.D.3d 1379 (3d Dept 2017): Reaffirms the best-interests standard and the need for record support.
• Matter of Ja'Sire FF. [Jalyssa GG.], 206 A.D.3d 1076 (3d Dept 2022), lv denied 38 N.Y.3d 912 (2022): Affirms continued placement where risk-related issues remain insufficiently addressed; supports conditioning reunification on treatment.
• MATTER OF HEATHER WW., 300 A.D.2d 940 (3d Dept 2002): Similar principles—treatment requirements and continued placement upheld when necessary for child safety.
• Matter of Noelia F. [Noel G.], 204 A.D.3d 1122 (3d Dept 2022): An appeal from an expired order of protection is moot absent exceptions not raised here.
• Matter of Kali-Ann E., 27 A.D.3d 796 (3d Dept 2006), lv denied 7 N.Y.3d 704 (2006): Additional support for mootness of expired protective orders.
• Family Court Act § 1051(a), (f): Authorizes fact-finding orders by consent without admission and specifies that such consents have the same legal effect as if the pleaded facts were proven for purposes of disposition.
• County Law § 722-c: Governs public funding for investigative, expert, or other services necessary for an indigent defendant or party; here, the father’s noncompliant application was denied without prejudice.

Legal Reasoning

1. Appealability after a consent fact-finding: The Third Department cleanly separates the nonappealability of the October 2022 consent-based fact-finding (FCA § 1051) from the appealability of the July 2023 disposition. Because the father did not consent to the dispositional terms, he could appeal the latter. This aligns with established doctrine that a party cannot appeal a consent order but may appeal later, non-consensual determinations affecting rights and obligations.
2. Effect of a consent neglect finding at disposition: By consenting under FCA § 1051(a), (f), the father accepted that the allegations in the petition—including the sexual abuse allegation—would be treated as if proven for purposes of disposition. This is pivotal: the court could properly insist on a “thorough” sex offender evaluation and follow-on treatment before reunification. The settlement itself anticipated this by requiring such an evaluation and compliance with recommendations through “positive discharge.”
3. Adequacy of the evaluation and compliance with the settlement: The father did not use the named evaluator and did not demonstrably use a “similarly credentialed practitioner” with specialist training who was fully apprised of the allegations. The resulting one-page form, generated by a county social worker, (a) labeled the father “below average” risk; but (b) left blank a core attestation—whether the result fairly represented his risk; and (c) did not yield any pathway into specialized treatment. Family Court found, and the Third Department agreed, that this was not the “thorough” assessment contemplated by the order. Without an adequate evaluation and engagement in recommended treatment, Family Court could reasonably conclude the father had not yet addressed the risk-related issues underlying the neglect finding.
4. Independent best-interests obligation despite agency neutrality: DSS honored its stipulation to “take no position” on the youngest child’s return if an evaluation was completed. But that did not constrain the court: article 10 imposes an independent judicial duty to determine the child’s best interests based on the full record. The court appropriately credited the shortcomings of the assessment and the absence of treatment, and it continued placement and required treatment until “positive, therapeutic discharge.” The Third Department deferred to the Family Court’s factual findings and affirmed, emphasizing the “sound and substantial basis” standard.
5. Mootness of order of protection: Because the protective order expired by its own terms in July 2024, the challenge to that order was moot, and no exception to mootness applied.
6. Procedural guardrail on affirmative relief: The attorney for the child could not secure affirmative relief concerning the earlier denial without prejudice of County Law § 722-c funding, because she was not an appealing party. This applied Hecht’s well-settled rule in the family law context.

Impact and Practice Implications

The decision offers several important clarifications and practical lessons:

• “Thorough” means specialized and complete: In article 10 cases where settlement conditions require a sex offender evaluation, a thin, one-page risk screen by a generalist will not suffice. Practitioners should ensure evaluations are conducted by an appropriately credentialed specialist who:
  • has demonstrable training and experience in psychosexual assessment and risk management;
  • is fully apprised of the underlying allegations and case history;
  • uses accepted tools and methods and addresses both static and dynamic risk factors;
  • explains the rationale for conclusions and explicitly states whether the score fairly represents risk;
  • identifies individualized treatment recommendations and protective factors; and
  • provides a roadmap for “positive, therapeutic discharge.”
• Settlement precision matters: If the agreement names an evaluator or permits a “similarly credentialed practitioner,” define those qualifications expressly (e.g., licensure, specialized training, experience, methodology) and specify evaluation elements (collateral contacts, instruments, treatment plan). Ambiguity invites disputes over adequacy.
• Agency neutrality is not dispositive: Even when DSS agrees to remain neutral, Family Court must and will conduct an independent best-interests analysis. A parent’s compliance must be substantive, not merely technical.
• Funding for expert services (County Law § 722-c): Indigent parents who need specialized evaluations should move early and submit applications that meet all statutory requirements. A denial without prejudice may cause delays that affect disposition timelines.
• Consent findings carry weight at disposition: FCA § 1051’s “same legal effect” clause means that, despite “no admission,” the pleaded facts can be treated as proven for the limited purpose of disposition. Parties should negotiate, draft, and consent with that effect in mind.
• Appeals and preservation: A party cannot appeal a consent fact-finding order but may appeal a later disposition to which they did not consent. Conversely, non-appealing parties (including attorneys for children) cannot secure affirmative relief on appeal; file a notice of appeal or cross-appeal where relief is sought.
• Mootness planning: Challenges to short-duration orders of protection may become moot before appellate review. Counsel should consider seeking expedited review or identifying mootness exceptions where appropriate.

Complex Concepts Simplified

• FCA article 10 (Neglect/Abuse): New York’s statutory framework for child protective proceedings, typically involving two phases—fact-finding (did neglect/abuse occur?) and disposition (what is in the child’s best interests?).
• Consent fact-finding (FCA § 1051(a)): A parent may resolve the fact-finding phase by consenting to a neglect finding without admitting the allegations. Under § 1051(f), that consent has the same legal effect as if the petition’s necessary facts were proven for the purpose of disposition.
• Dispositional standard: Family Court must order a disposition consistent with the child’s best interests, supported by a “sound and substantial basis” in the record. Appellate courts defer to Family Court’s factual findings, especially those grounded in credibility.
• Sex offender evaluation vs. risk screen: A full psychosexual evaluation involves a comprehensive assessment by a trained specialist using accepted tools and collateral information and yields treatment recommendations. A “risk screen” may be a limited, checklist-style instrument that, standing alone, is often insufficient for court-ordered conditions.
• “Positive, therapeutic discharge”: A term commonly used to mean completion of recommended treatment with favorable clinical outcomes, typically documented by the treating professional.
• County Law § 722-c: Allows publicly funded payment for necessary experts or services for indigent parties upon a proper application demonstrating necessity and compliance with statutory criteria.
• Mootness (orders of protection): When an order expires by its own terms, appellate challenges to it are usually moot unless an exception applies (e.g., issues capable of repetition yet evading review).
• Affirmative relief on appeal: An appellate court will not grant affirmative relief to a party who did not appeal; a notice of appeal or cross-appeal is typically required.

How This Decision Fits Within the Case Law

The ruling does not break new doctrinal ground so much as it consolidates several strands of New York child protection jurisprudence:

• It reiterates the nonappealability of consent orders while preserving appellate review of non-consensual dispositions.
• It underscores that consent neglect findings carry tangible weight at disposition under FCA § 1051(f), authorizing risk-focused remedial conditions.
• It clarifies that “no position” stipulations by DSS do not limit Family Court’s parens patriae role to ensure child safety and well-being.
• It provides concrete markers for what will not count as a “thorough” sex offender evaluation in this context, signaling that courts will look past labels (e.g., “below average risk”) to the quality and completeness of the evaluation and the parent’s engagement in treatment.
• It applies familiar principles on mootness and appellate procedure to common ancillary issues in neglect litigation.

Conclusion

In affirming Family Court’s dispositional order, the Third Department sends a clear message: Article 10 settlements that condition reunification on a sex offender evaluation and “positive” completion of recommended treatment demand meaningful compliance. A minimalist, non-specialist risk screen—particularly one with critical sections left blank—does not meet that bar. The court’s independent best-interests obligation persists regardless of agency neutrality, and consent neglect findings under FCA § 1051 will be treated as if proven for disposition. Appellate practitioners are reminded that while consent fact-findings are not appealable, non-consensual dispositions are; and that affirmative relief on appeal requires a party to actually appeal.

Practically, the opinion encourages early, well-supported applications for publicly funded expert evaluations where needed, careful drafting of settlement provisions specifying evaluator credentials and evaluation content, and diligent follow-through on specialized treatment. Taken together, these measures will better position parents seeking reunification and aid courts in making best-interests determinations grounded in a robust, reliable record.