In re Thomas B.

Citation2016 N.Y. Slip Op. 03640,31 N.Y.S.3d 381,139 A.D.3d 1402
Decision Date06 May 2016
Docket Number422 CAF 14-00906.
PartiesIn the Matter of THOMAS B. and Dagan B. Ontario County Department of Social Services, Petitioner–Respondent; Calla B., Respondent–Appellant.
CourtNew York Supreme Court — Appellate Division

139 A.D.3d 1402
31 N.Y.S.3d 381
2016 N.Y. Slip Op. 03640

In the Matter of THOMAS B. and Dagan B.

Ontario County Department of Social Services, Petitioner–Respondent;

Calla B., Respondent–Appellant.

422 CAF 14-00906.

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

May 6, 2016.


31 N.Y.S.3d 382

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.

MEMORANDUM:

139 A.D.3d 1402

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

139 A.D.3d 1403

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

31 N.Y.S.3d 383

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...

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