Chautauqua Cnty. Dep't of Soc. Servs.v.Stacey S. (In re Tyler W.)

Supreme Court, Appellate Division, Fourth Department, New York.Oct 3, 2014
994 N.Y.S.2d 217 (N.Y. App. Div. 2014)
994 N.Y.S.2d 217121 A.D.3d 15722014 N.Y. Slip Op. 6731


In the Matter of TYLER W., Mikella T., John S., III and Jaden T. Chautauqua County Department of Social Services, Petitioner–Respondent; Stacey S., Respondent–Appellant.

D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth deV. Moeller of Counsel), for Respondent–Appellant. Barbara L. Widrig, Mayville, for Petitioner–Respondent.

D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth deV. Moeller of Counsel), for Respondent–Appellant. Barbara L. Widrig, Mayville, for Petitioner–Respondent.
Sherry A. Bjork, Attorney for the Children, Frewsburg.



In this proceeding pursuant to Family Court Act article 10, respondent mother appeals from an order finding that she neglected the subject children and placing the children in petitioner's custody. At the outset, we reject petitioner's contention that this appeal was rendered moot when the mother consented to a subsequent finding of neglect ( see Matter of Karm'Ny QQ. [Steven QQ.], 114 A.D.3d 1101, 1101–1102, 981 N.Y.S.2d 217), inasmuch as “the finding of neglect constitutes a permanent and significant stigma that might indirectly affect the mother's status in future proceedings” ( Matter of Jamiar W. [Malipeng W.], 84 A.D.3d 1386, 1386–1387, 924 N.Y.S.2d 553).

We reject the mother's contention that Family Court's finding of neglect was not supported by a preponderance of the evidence ( seeFamily Ct. Act § 1046[b][i] ). “Where, as here, issues of credibility are presented, the hearing court's findings must be accorded great deference” (Matter of Todd D., 9 A.D.3d 462, 463, 780 N.Y.S.2d 180). We reject the mother's further contention that reversal is required based on the court's admission of inadmissible hearsay, i.e., a hearsay statement made by the mother's boyfriend. Any error in the admission of that statement is harmless because “ ‘the result reached herein would have been the same even had such [statement] been excluded’ ” (Matter of Alyshia M.R., 53 A.D.3d 1060, 1061, 861 N.Y.S.2d 551, lv. denied 11 N.Y.3d 707, 868 N.Y.S.2d 599, 897 N.E.2d 1083; cf. Matter of Leon RR, 48 N.Y.2d 117, 121, 421 N.Y.S.2d 863, 397 N.E.2d 374). At the fact-finding hearing, petitioner established that the physical, mental or emotional condition of the children was in imminent danger of becoming impaired, based on evidence that the mother frequently exposed the subject children to domestic violence, drug use, her own mental instability, and other unsafe conditions ( see§ 1012 [f][i][B]; Matter of Afton C. [James C.], 17 N.Y.3d 1, 9, 926 N.Y.S.2d 365, 950 N.E.2d 101; Matter of Jayden B. [Erica R.], 91 A.D.3d 1344, 1345, 938 N.Y.S.2d 692; Matter of Hailey W., 42 A.D.3d 943, 943–944, 839 N.Y.S.2d 644, lv. denied9 N.Y.3d 812, 846 N.Y.S.2d 602, 877 N.E.2d 652).

We agree with the mother, however, that the court abused its discretion in denying her attorney's request to adjourn the dispositional hearing because the mother was unable to attend. While it is not an abuse of discretion for the court to deny a request for an adjournment where no reason for the parent's absence has been given ( see Matter of Evelyn R. [Franklin R.], 117 A.D.3d 957, 957–958, 986 N.Y.S.2d 223), here, there was “good cause” to adjourn the hearing ( seeFamily Ct. Act § 1048[a] ). In addition, it appears from the record that the proceedings in this matter were not protracted, and that this was the mother's first request for an adjournment ( see Matter of Nicole J., 71 A.D.3d 1581, 1582, 896 N.Y.S.2d 918). We therefore modify the order by vacating the disposition, and we remit the matter to Family Court for a new dispositional hearing. In light of our determination, we do not reach the mother's remaining contention.

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, Chautauqua County, for a new dispositional hearing.