Opinion
319 17–01274
05-03-2019
In the MATTER OF DAGAN B. Ontario County Department of Social Services Child Protective Unit, Petitioner-Respondent; v. Calla B., Respondent-Appellant. (Appeal No. 1.)
DAVISON LAW OFFICE, PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR RESPONDENT–APPELLANT. HOLLY A. ADAMS, COUNTY ATTORNEY, CANANDAIGUA, FOR PETITIONER–RESPONDENT. TIFFANY M. SORGEN, CANANDAIGUA, ATTORNEY FOR THE CHILD.
DAVISON LAW OFFICE, PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR RESPONDENT–APPELLANT.
HOLLY A. ADAMS, COUNTY ATTORNEY, CANANDAIGUA, FOR PETITIONER–RESPONDENT.
TIFFANY M. SORGEN, CANANDAIGUA, ATTORNEY FOR THE CHILD.
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that said appeal from the order insofar as it concerns disposition is unanimously dismissed and the order is affirmed without costs.
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 the subject child in the care and custody of petitioner (DSS). Although the mother's challenge to the disposition "is moot inasmuch as it is undisputed that superseding permanency orders have since been entered" ( Matter of Anthony L. [Lisa P.], 144 A.D.3d 1690, 1691, 41 N.Y.S.3d 641 [4th Dept. 2016], lv denied 28 N.Y.3d 914, 2017 WL 581722 [2017] ), and the exception to the mootness doctrine does not apply (cf. Matter of Jamie J. [Michelle E.C.], 30 N.Y.3d 275, 281, 67 N.Y.S.3d 78, 89 N.E.3d 468 [2017] ), her appeal brings up for review the order of fact-finding determining that the mother neglected the child (see Anthony L., 144 A.D.3d at 1691, 41 N.Y.S.3d 641 ). However, on a prior appeal, we determined that DSS established by a preponderance of the evidence that the child was neglected as a result of the mother's mental illness and rejected the mother's contention that a finding of mental illness must be supported by a particular diagnosis or by medical evidence ( Matter of Thomas B. [Calla B.], 139 A.D.3d 1402, 1403–1404, 31 N.Y.S.3d 381 [4th Dept. 2016] ). "That determination is the law of the case, which forecloses the mother's challenge to that finding in the instant appeal" ( Matter of Burke H. [Richard H.], 134 A.D.3d 1499, 1503, 23 N.Y.S.3d 776 [4th Dept. 2015] ). Contrary to the mother's contention, there was no new evidence presented at the dispositional hearing that would change our prior determination, nor was there any showing of any subsequent change in the law (see Matter of Renee P.-F. v. Frank G., 161 A.D.3d 1163, 1165–1166, 79 N.Y.S.3d 45 [2d Dept. 2018], lv denied 32 N.Y.3d 910, 911, 91 N.Y.S.3d 357, 115 N.E.3d 629 [2018] ; Matter of Yamilette M.G. [Marlene M.], 118 A.D.3d 698, 699, 986 N.Y.S.2d 485 [2d Dept. 2014], lv denied 24 N.Y.3d 906, 2014 WL 5366330 [2014] ; see generally Micro–Link, LLC v. Town of Amherst, 155 A.D.3d 1638, 1640, 65 N.Y.S.3d 399 [4th Dept. 2017] ).