Opinion
10-27-2016
In the Matter of ADELE T., Alleged to be a Permanently Neglected Child. Tioga County Department of Social Services, Respondent, Kassandra T., Appellant.
Pamela B. Bleiwas, Ithaca, for appellant. Judith Quigley, County Attorney, Owego (Christian Root of counsel), for respondent. Christopher A. Pogson, Binghamton, attorney for the child.
Pamela B. Bleiwas, Ithaca, for appellant.
Judith Quigley, County Attorney, Owego (Christian Root of counsel), for respondent.
Christopher A. Pogson, Binghamton, attorney for the child.
Before: PETERS, P.J., McCARTHY, GARRY, CLARK and AARONS, JJ.
CLARK, J. Appeals from two orders of the Family Court of Tioga County (Keene, J.), entered June 29, 2015 and August 17, 2015, which granted petitioner's application, in a proceeding pursuant to Social Services Law § 384–b, to adjudicate the subject child to be permanently neglected, and terminated respondent's parental rights.
In February 2012, respondent gave birth to a child who was addicted to drugs and the child was thereafter placed in the care and custody of petitioner. Respondent consented to a finding of neglect in November 2012, and petitioner commenced this proceeding in February 2015 seeking an adjudication of permanent neglect and termination of respondent's parental rights. After respondent failed to appear on the permanent neglect petition, Family Court issued a warrant for her arrest. Respondent was subsequently arrested, served with the permanent neglect petition and advised that her unexcused absence at the fact-finding hearing scheduled for the following week could result in the court proceeding without her. Respondent's counsel appeared at the fact-finding hearing, but respondent did not. Upon being reached by telephone, respondent stated that her ride to the courthouse had fallen through, but refused to divulge any details regarding that ride and declined Family Court's offer to pause the proceedings to allow a relative to pick her up. Family Court found respondent in default and, after an inquest, adjudicated the child to be permanently neglected. Following a dispositional hearing, at which respondent also did not appear, Family Court terminated respondent's parental rights. Respondent appeals from both the fact-finding order and the dispositional order.
Initially, because no appeal lies as of right from a nondispositional order in a permanent neglect proceeding, respondent's appeal from the fact-finding order must be dismissed (see Matter of Aniya L. [Samantha L.], 124 A.D.3d 1001, 1002 n., 1 N.Y.S.3d 527 [2015], lv. denied 25 N.Y.3d 904, 2015 WL 2032963 [2015] ; Matter of Kayden E. [Luis E.], 111 A.D.3d 1094, 1095 n. 2, 975 N.Y.S.2d 789 [2013], lv. denied 22 N.Y.3d 862, 2014 WL 702010 [2014] ). While the fact-finding order is brought up for review on the appeal from the dispositional order (see CPLR 5501[a] [1] ; Matter of Arianna I. [Roger I.], 100 A.D.3d 1281, 1282 n. 1, 955 N.Y.S.2d 413 [2012] ), respondent is nevertheless foreclosed from raising issues relating to the fact-finding phase of the proceeding, as a party cannot appeal from an order entered upon default (see CPLR 5511 ; Matter of Myasia QQ. [Mahalia QQ.], 133 A.D.3d 1055, 1056, 21 N.Y.S.3d 361 [2015] ; Matter of Semonae YY., 239 A.D.2d 716, 716–717, 657 N.Y.S.2d 488 [1997] ). Notwithstanding the appearance of counsel on her behalf at the fact-finding hearing, under the circumstances described above, particularly respondent's rejection of the accommodations offered by Family Court to secure her participation at the hearing, Family Court properly found respondent to be in default (see Matter of Deshane v. Deshane, 123 A.D.3d 1243, 1244, 999 N.Y.S.2d 226 [2014], lv. denied 25 N.Y.3d 901, 2015 WL 1422486 [2015] ; Matter of Derek P. v. Doris Q., 92 A.D.3d 1103, 1105, 939 N.Y.S.2d 151 [2012], lv. dismissed and denied 19 N.Y.3d 831, 945 N.Y.S.2d 641, 968 N.E.2d 997 [2012] ; Matter of Naomi KK. v. Natasha LL., 80 A.D.3d 834, 835, 914 N.Y.S.2d 408 [2011], lv. denied 16 N.Y.3d 711, 2011 WL 1643283 [2011] ).
Respondent's appeal from the dispositional order must similarly be dismissed. Respondent's counsel offered no explanation for respondent's failure to appear at the dispositional hearing, indicated that she had been unable to reach respondent despite various attempts and did not participate in the proceedings or make any motions on respondent's behalf. Given these facts, Family Court properly entered the dispositional order upon respondent's default and, thus, the merits of her appeal from that order are not properly before us (see Matter of Myasia QQ. [Mahalia QQ.], 133 A.D.3d at 1056–1057, 21 N.Y.S.3d 361 ; Matter of Naomi KK. v. Natasha LL., 80 A.D.3d at 835, 914 N.Y.S.2d 408 ). We note that the proper procedure would have been for respondent to have moved to vacate the orders of default and, if necessary, appeal from the denial of those motions (see Matter of Deshane v. Deshane, 123 A.D.3d at 1244, 999 N.Y.S.2d 226 ; Matter of Derek P. v. Doris Q., 92 A.D.3d at 1105, 939 N.Y.S.2d 151 ).
ORDERED that the appeals are dismissed, without costs.
PETERS, P.J., McCARTHY, GARRY and AARONS, JJ., concur.