Matter of David J.M. (Linda V.)

Matter of David J.M. (Linda V.) 2026 NY Slip Op 05535 September 30, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. In the Matter of David J. M. (Anonymous), Jr. Administration for Children's Services, respondent; Linda. (Anonymous), appellant. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on September 30, 2026 2025-05713, (Docket No. N-9336-24) Mark C. Dillon, J.P. Linda Christopher Barry E. Warhit Elena Goldberg Velazquez, JJ. Jill M. Zuccardy, New York, NY, for appellant. Steven Banks, Corporation Counsel, New York, NY (Devin Slack and Janet L. Zaleon of counsel), for respondent. Twyla Carter, New York, NY (Dawne A. Mitchell, Claire V. Merkine, and Olivia Lubchuk of counsel), attorney for the child. [*1] DECISION & ORDER In a proceeding pursuant to Family Court Act article 10, the mother appeals from an order of disposition of the Family Court, Queens County (Emily Ruben, J.), dated March 31, 2025. The order of disposition, upon an order of fact-finding dated February 18, 2025, finding that the mother neglected the subject child, after a dispositional hearing, and upon the mother's failure to appear at the dispositional hearing, inter alia, granted the subject child discretion to determine the mother's supervised parental access with him. ORDERED that the appeal from the order of disposition is dismissed, without costs or disbursements, except with respect to matters which were the subject of contest (see CPLR 5511; Matter of Sophia T. [Luke T.], 248 AD3d 1124, 1125); and it is further, ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements. The Administration for Children's Services (hereinafter ACS) commenced this neglect proceeding pursuant to Family Court Act article 10. ACS alleged that the mother had neglected the subject child by failing to address her own mental health issues and by failing to provide the child with an adequate education, among other things. After a fact-finding hearing, the Family Court found that the mother neglected the child. The mother declined to appear in person at the dispositional hearing despite being directed by the court to appear in person. The court issued an order of disposition, among other things, granting the child discretion to determine the mother's supervised parental access with him. The mother appeals. Since the order of disposition appealed from was made upon the mother's default, review is limited to matters which were the subject of contest in the Family Court (see Matter of Angelina G. [Angel G.], 220 AD3d 773, 774; Matter of Joseph Bruce I. [Joseph A.I.], 185 AD3d 930, 931). Accordingly, on this appeal, review is limited to the court's finding that the mother [*2]neglected the child. "At a fact-finding hearing in a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of establishing, by a preponderance of the evidence, that the subject children have been abused or neglected" (Matter of Chance F. [Roy F.], 238 AD3d 1037, 1037; see Matter of Aiyana F. [Danielle B.], 249 AD3d 1045, 1046). "[W]hile parental neglect may be based on mental illness, proof of a parent's mental illness alone will not support a finding of neglect" (Matter of David J. [Danielle J.], 236 AD3d 786, 788-789 [internal quotation marks omitted]; see Matter of Rayvin G. [Arlasha G.], 237 AD3d 933, 935). However "such evidence may be part of a neglect determination when the proof further demonstrates that the parent's condition creates an imminent risk of physical, mental, or emotional harm to the child" (Matter of Moshae L. [Angela J.], 237 AD3d 821, 824 [internal quotation marks omitted]; see Matter of Justin Noah O. [Ruth S.], 239 AD3d 983, 983). Here, ACS established by a preponderance of the evidence that the mother neglected the child. ACS's evidence demonstrated that the mother's untreated mental illness caused the child to be placed at imminent risk of harm (see Matter of Aiyana F. [Danielle B.], 249 AD3d at 1047; Matter of Justin Noah O. [Ruth S.], 239 AD3d at 984; Matter of Precise M. [Tawana M.], 215 AD3d 680, 681). Accordingly, the Family Court properly found that the mother neglected the child. DILLON, J.P., CHRISTOPHER, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court