Opinion
415 CAF 20-00240
05-07-2021
In the MATTER OF LIL B. J.-Z. Orleans County Department of Social Services, Petitioner-Respondent; v. Jessica N.J., Respondent-Appellant. (Appeal No. 2.)
LORENZO NAPOLITANO, ROCHESTER, FOR RESPONDENT-APPELLANT. DANA A. GRABER, ALBION, FOR PETITIONER-RESPONDENT. CHARLES PLOVANICH, ROCHESTER, ATTORNEY FOR THE CHILD.
LORENZO NAPOLITANO, ROCHESTER, FOR RESPONDENT-APPELLANT.
DANA A. GRABER, ALBION, FOR PETITIONER-RESPONDENT.
CHARLES PLOVANICH, ROCHESTER, ATTORNEY FOR THE CHILD.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal from the order insofar as it concerns the disposition is unanimously dismissed and the order is affirmed without costs.
Memorandum: In appeal No. 1, respondent mother appeals from an order entered after a fact-finding hearing that, inter alia, found the subject child to be neglected. In appeal No. 2, the mother appeals from an order of disposition that adjudged the child to be neglected and, among other things, maintained placement of the child with petitioner pending a future permanency hearing.
As an initial matter, the mother's appeal from the order in appeal No. 1 must be dismissed inasmuch as the appeal from the dispositional order in appeal No. 2 brings up for review the propriety of the fact-finding order in appeal No. 1 (see Matter of Jaime D. [James N.] [appeal No. 2], 170 A.D.3d 1524, 1525, 94 N.Y.S.3d 533 [4th Dept. 2019], lv denied 34 N.Y.3d 901, 2019 WL 5382260 [2019] ). Further, the mother's appeal from the order in appeal No. 2 insofar as it concerns the disposition must be dismissed as moot because that part of the order has expired by its terms (see id. ; Matter of Gabriella G. [Jeannine G.] , 104 A.D.3d 1136, 1136, 962 N.Y.S.2d 537 [4th Dept. 2013] ). The mother "may nevertheless challenge the underlying neglect adjudication because it constitutes a permanent stigma to a parent and may, in future proceedings, affect a parent's status" ( Jaime D. , 170 A.D.3d at 1525, 94 N.Y.S.3d 533 [internal quotation marks omitted]).
Contrary to the mother's contention, however, we conclude that petitioner met its burden of establishing neglect by a preponderance of the evidence (see Matter of Lyndon S. [Hillary S.] , 163 A.D.3d 1432, 1433, 80 N.Y.S.3d 821 [4th Dept. 2018] ). "A respondent's mental condition may form the basis of a finding of neglect if it is shown by a preponderance of the evidence that his or her condition resulted in imminent danger to the child[ ]," although "[p]roof of mental illness alone will not support a finding of neglect ... The evidence must establish a causal connection between the parent's condition, and actual or potential harm to the child[ ]" ( id. [internal quotation marks omitted]; see Matter of Matigan G. [Sara E.W.-G.] , 145 A.D.3d 1484, 1485-1486, 43 N.Y.S.3d 638 [4th Dept. 2016], lv denied 29 N.Y.3d 904, 2017 WL 1223728 [2017] ). Here, petitioner met its burden by establishing that the mother's mental health condition resulted in both harm and "imminent danger" to the child during the period alleged in the neglect petition ( Lyndon S. , 163 A.D.3d at 1433, 80 N.Y.S.3d 821 [internal quotation marks omitted]).
The mother failed to preserve for our review her further contention that Family Court erred in conducting portions of the fact-finding hearing in her absence (see Matter of Jaydalee P. [Codilee R.] , 156 A.D.3d 1477, 1477, 67 N.Y.S.3d 371 [4th Dept. 2017], lv denied 31 N.Y.3d 904, 2018 WL 1957464 [2018] ). In any event, "a parent's right to be present at every stage of a Family Court Act article 10 proceeding is not absolute" and, "when faced with the unavoidable absence of a parent, a court must balance the respective rights and interests of both the parent and the child in determining whether to proceed" ( Matter of Kenneth C. [Terri C.] , 145 A.D.3d 1612, 1613, 43 N.Y.S.3d 819 [4th Dept. 2016], lv denied 29 N.Y.3d 905, 2017 WL 1574355 [2017] [internal quotation marks omitted]). Under the circumstances of this case, we conclude that the court did not err in proceeding in the mother's absence and, moreover, that "her attorney fully represented her at the fact-finding ... hearing[ ], and thus the mother has not demonstrated that she suffered any prejudice arising from her absence" ( id. ).
We have considered the mother's remaining contentions and conclude that they lack a basis in the record.