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

422
CAF 14-00906
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


IN THE MATTER OF THOMAS B. AND DAGAN B.
---------------------------------------------
ONTARIO COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;
                                                  MEMORANDUM AND ORDER
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.


     Appeal from an order of the Family Court, Ontario County (Craig
J. Doran, J.), entered April 17, 2014 in a proceeding pursuant to
Family Court Act article 10. The order, among other things, placed
the subject children under the care and custody of petitioner pending
the next permanency hearing.

     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 in accordance with the following 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 AD3d 1257, 1258).

     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
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                                                         CAF 14-00906

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 AD3d
548, 548-549; Matter of Tiara B. [appeal No. 2], 64 AD3d 1181, 1181-
1182; cf. Bradley M.M., 98 AD3d at 1258). 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 AD3d 761, 762),
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 NY2d 249, 256 n 3, rearg
denied 19 NY2d 862; Matter of Lucinda A. [Luba A.], 120 AD3d 492, 493,
lv denied 25 NY3d 962, rearg denied 25 NY3d 1195; see generally Paul v
Cooper [appeal No. 2], 100 AD3d 1550, 1551, lv denied 21 NY3d 855).

     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 AD3d at 762; see generally Family Court
Act §§ 1012 [f] [i] [B]; 1046 [b] [i]; Nicholson v Scoppetta, 3 NY3d
357, 368-369). 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 AD3d 1207, 1208; see Matter of Senator NN., 11 AD3d 771, 772;
Matter of Nicole Q., 242 AD2d 915, 916; see generally Matter of Alexis
H. [Jennifer T.], 90 AD3d 1679, 1680, lv denied 18 NY3d 810).
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 AD2d 490, 490; Matter
of Zariyasta S., 158 AD2d 45, 48).

     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 AD3d 758, 758). 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 AD3d 1914, 1914, lv denied 15 NY3d 708, cert denied 562 US
1234), 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 AD3d 1066, 1067-1068; cf. Krische, 100 AD3d at 759; see
generally Matter of Eileen R. [Carmine S.], 79 AD3d 1482, 1485-1486).
We therefore modify the order by vacating the disposition, and we
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                                                         CAF 14-00906

remit the matter to Family Court for a new dispositional hearing (see
generally Matter of Tyler W. [Stacey S.], 121 AD3d 1572, 1573).
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
AD3d 842, 843; Matter of John S., 175 AD2d 207, 208-209; see generally
Family Ct Act § 1012 [f]; Matter of Helen L.O. v Mark L.O., 37 AD3d
1190, 1190-1191, lv denied 8 NY3d 812).




Entered:   May 6, 2016                         Frances E. Cafarell
                                               Clerk of the Court
