IN THE MATTER OF JAYDALEE P. AND QUENTIN P. HERKIMER COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; CODILEE R., RESPONDENT-APPELLANT.
J. DIGIORGIO, JR., UTICA, FOR RESPONDENT-APPELLANT.
JACQUELYN M. ASNOE, HERKIMER, FOR PETITIONER-RESPONDENT.
G. KAMINSKI, ATTORNEY FOR THE CHILDREN, UTICA.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND
from an order of the Family Court, Herkimer County (John J.
Brennan, J.), dated July 8, 2016 in a proceeding pursuant to
Family Court Act article 10. The order, among other things,
adjudged that respondent had neglected the subject children.
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
On appeal from an order adjudging her two children to be
neglected, respondent mother contends that Family Court
should have granted an adjournment or permitted the mother to
participate by telephone when she was unable to appear for
the trial. One month before the trial on the petition, the
mother was personally served with a notice informing her of
the trial date and warning her that, if she failed to appear
for the trial, the court would proceed in her absence
"on an inquest basis." At some point thereafter,
the mother relocated to Michigan. On the eve of the trial,
the court received a letter from the mother in which she
stated that she did not have the money to travel to New York
and back to Michigan. The mother stated that she went to
Michigan because she was "not working and... not
eligible for social services" in New York. The mother
asked if she "could get a phone interview."
day of the trial, the court informed the mother's
attorney that it was denying the mother's request to
appear by telephone for the trial. The attorney neither
objected to the court's statement nor requested an
adjournment. We thus conclude that the mother failed to
preserve for our review her present contention, raised for
the first time on appeal, that the court erred in refusing to
adjourn the trial and proceeding in her absence (see
Matter of Nicholas Francis K., 20 A.D.3d 478, 478-479
[2d Dept 2005]; see also Matter of Keara MM. [Naomi
MM.], 84 A.D.3d 1442, 1444 [3d Dept 2011]).
contrast, the mother's contention that the court erred in
refusing to allow her to participate in the trial by
telephone is preserved for our review because "the issue
was contested" and decided against her (Matter of
Thomas B. [Calla B.], 139 A.D.3d 1402, 1404 [4th Dept
2016]). We nevertheless conclude that reversal is not
warranted. Domestic Relations Law § 75-j (2), which
applies to all child custody proceedings, including neglect
proceedings (see § 75-a ), states that a
court " may permit an individual residing in
another state... to testify by telephone" or other
electronic means (emphasis added). It is a permissive statute
and thus "does not require courts to allow testimony by
telephone or electronic means in all cases" (Thomas
B., 139 A.D.3d at 1404; see Matter of Barnes v
McKown, 74 A.D.3d 1914, 1914 [4th Dept 2010], lv
denied 15 N.Y.3d 708');">15 N.Y.3d 708 , cert denied 562
U.S. 1234 ). Inasmuch as the mother relocated to
Michigan less than one month before the trial date without
notifying petitioner (cf. Thomas B., 139 A.D.3d at
1404), we conclude that the court did not abuse its
discretion in denying her request to appear by telephone.
mother further contends that the court erred in admitting in
evidence the entire case file concerning her from another
county's Department of Social Services because that file
contained unredacted, inadmissible hearsay (see generally
Matter of Leon RR, 48 N.Y.2d 117, 122 ). We agree
with petitioner and the Attorney for the Child that, even
though the case file contained some inadmissible hearsay, any
error in its admission is harmless because " the result
reached herein would have been the same even had such
record[s], or portions thereof, been excluded' "
(Matter of Alyshia M.R., 53 A.D.3d 1060, 1061 [4th
Dept 2008], lv denied11 N.Y.3d 707');">11 N.Y.3d 707 ; cf.
Leon RR, 48 N.Y.2d at 122-124). Moreover, "[t]here
is no indication that the court considered, credited, or
relied upon inadmissible hearsay in reaching its
determination" (Matter of ...