Opinion
422 CAF 14-00906.
05-06-2016
In the Matter of THOMAS B. and Dagan B. Ontario County Department of Social Services, Petitioner–Respondent; Calla B., Respondent–Appellant.
Davison Law Office PLLC, Canandaigua (Mark C. Davison of Counsel), for Respondent–Appellant. Gary L. Curtiss, County Attorney, Canandaigua (Holly A. Adams of Counsel), for Petitioner–Respondent. Tiffany M. Sorgen, Attorney for the Children, Canandaigua.
Davison Law Office PLLC, Canandaigua (Mark C. Davison of Counsel), for Respondent–Appellant.
Gary L. Curtiss, County Attorney, Canandaigua (Holly A. Adams of Counsel), for Petitioner–Respondent.
Tiffany M. Sorgen, Attorney for the Children, Canandaigua.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DeJOSEPH, AND NEMOYER, JJ.
Opinion
MEMORANDUM: In this neglect proceeding pursuant to Family Court Act article 10, respondent mother appeals from an order of disposition that, inter alia, continued the placement of her two children in the care and custody of petitioner Ontario County Department of Social Services (DSS). The mother's appeal also brings up for review an order of fact-finding determining that she neglected the subject children (see CPLR 5501[a][1] ; Matter of Bradley M.M. [Michael M.-Cindy M.], 98 A.D.3d 1257, 1258, 951 N.Y.S.2d 604 ).
Contrary to the mother's contention, we conclude that the order of disposition was properly entered upon her default based on her failure to appear on the date scheduled for the dispositional hearing. On that date, the mother's retained attorney appeared in Family Court, notwithstanding that the mother had directed that attorney to “remove [him]self fro[m] the case and have the court reassign counsel,” and he objected to the entry of a default order on the basis that the mother “should continue to have input through an attorney.” The court then assigned a new attorney for the mother, and that attorney declined to be heard on DSS's application for a default order. Under those circumstances, where neither attorney was both willing and authorized to proceed with the hearing in the mother's absence, we conclude that the court properly determined that the mother's failure to appear constituted a default (see Matter of Aaron C. [Grace C.], 105 A.D.3d 548, 548–549, 963 N.Y.S.2d 208 ; Matter of Tiara B. [Appeal No. 2], 64 A.D.3d 1181, 1181–1182, 881 N.Y.S.2d 754 ; cf. Bradley M.M., 98 A.D.3d at 1258, 951 N.Y.S.2d 604 ). The mother's appeal is therefore “limited to matters which were the subject of contest” in the proceedings below (Matter of Yu F. [Fen W.], 122 A.D.3d 761, 762, 996 N.Y.S.2d 186 ), including issues involving the fact-finding hearing, at which the mother was present, and rulings made by the court prior to the dispositional hearing (see James v. Powell, 19 N.Y.2d 249, 256 n. 3, 279 N.Y.S.2d 10, 225 N.E.2d 741, rearg. denied 19 N.Y.2d 862, 280 N.Y.S.2d 1025, 227 N.E.2d 408 ; Matter of Lucinda A. [Luba A.], 120 A.D.3d 492, 493, 990 N.Y.S.2d 627, lv. denied 25 N.Y.3d 962, 8 N.Y.S.3d 259, 30 N.E.3d 903, rearg. denied 25 N.Y.3d 1195, 16 N.Y.S.3d 53, 37 N.E.3d 112 ; see generally Paul v. Cooper [Appeal No. 2], 100 A.D.3d 1550, 1551, 954 N.Y.S.2d 799 lv. denied 21 N.Y.3d 855, 967 N.Y.S.2d 689, 989 N.E.2d 971 ).
We conclude that DSS established by a preponderance of the evidence that the children were neglected as a result of the mother's mental illness (see Yu F., 122 A.D.3d at 762, 996 N.Y.S.2d 186 ; see generally Family Court Act §§ 1012[f][i][B] ; 1046[b][i]; Nicholson v. Scoppetta, 3 N.Y.3d 357, 368–369, 787 N.Y.S.2d 196, 820 N.E.2d 840 ). The evidence at the hearing established that the mother engaged in “ ‘bizarre and paranoid behavior’ ” toward the older child that placed his physical, mental, or emotional condition in imminent danger of becoming impaired, and that such behavior took place in the presence of the younger child at times and thereby exposed him to a similar danger (Matter of Christy S. v. Phonesavanh S., 108 A.D.3d 1207, 1208, 970 N.Y.S.2d 340 ; see Matter of Senator NN., 11 A.D.3d 771, 772, 783 N.Y.S.2d 105 ; Matter of Nicole Q., 242 A.D.2d 915, 916, 665 N.Y.S.2d 370 ; see generally Matter of Alexis H. [Jennifer T.], 90 A.D.3d 1679, 1680, 936 N.Y.S.2d 823, lv. denied 18 N.Y.3d 810, 2012 WL 1085530 ). Contrary to the mother's contention, a finding of neglect based on mental illness need not be supported by a particular diagnosis or by medical evidence (see Matter of Caress S., 250 A.D.2d 490, 490, 673 N.Y.S.2d 123 ; Matter of Zariyasta S., 158 A.D.2d 45, 48, 557 N.Y.S.2d 895 ).
We agree with the mother, however, that the court should have allowed her to appear by telephone pursuant to Domestic Relations Law § 75–j at the dispositional hearing. That issue was contested below and is thus reviewable despite the mother's subsequent default (see Matter of Krische v. Sloan, 100 A.D.3d 758, 758, 953 N.Y.S.2d 876 ). The record establishes that the mother moved to Florida, with financial assistance from DSS, during the period between the fact-finding hearing and the dispositional hearing. She requested permission to make future appearances by telephone, and the court denied the request, citing “the facts and circumstances of the case” and its preference that the mother be present “as any party of the proceeding should be present.” While section 75–j does not require courts to allow testimony by telephone or electronic means in all cases (see Matter of Barnes v. McKown, 74 A.D.3d 1914, 1914, 903 N.Y.S.2d 843, lv. denied 15 N.Y.3d 708, 2010 WL 3632202, cert. denied 562 U.S. 1234, 131 S.Ct. 1506, 179 L.Ed.2d 331 ), we conclude that the ruling here, in which the court failed to consider the impact of the mother's limited financial resources on her ability to travel to New York, was an abuse of discretion (see DeJac v. DeJac, 17 A.D.3d 1066, 1067–1068, 794 N.Y.S.2d 208 ; cf. Krische, 100 A.D.3d at 759 ; see generally Matter of Eileen R. [Carmine S.], 79 A.D.3d 1482, 1485–1486, 912 N.Y.S.2d 350 ). We therefore modify the order by vacating the disposition, and we remit the matter to Family Court for a new dispositional hearing (see generally Matter of Tyler W. [Stacey S.], 121 A.D.3d 1572, 1573, 994 N.Y.S.2d 217 ). Because the older child is now over 18 years old and can no longer be considered a neglected child, a new dispositional hearing need be held only with respect to the younger child (see Matter of Daniel W., 37 A.D.3d 842, 843, 831 N.Y.S.2d 244 ; Matter of John S., 175 A.D.2d 207, 208–209, 572 N.Y.S.2d 621 ; see generally Family Ct. Act § 1012[f] ; Matter of Helen L.O. v. Mark L.O., 37 A.D.3d 1190, 1190–1191, 830 N.Y.S.2d 425, lv. denied 8 N.Y.3d 812, 836 N.Y.S.2d 551, 868 N.E.2d 234 ).
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the disposition, and as modified the order is affirmed without costs, and the matter is remitted to Family Court, Ontario County, for a new dispositional hearing.