Opinion
2022–07338 Docket Nos. B–900–20, B–902–20
07-12-2023
In the MATTER OF ANASTASIA N.A. (Anonymous). Westchester County Department of Social Services, respondent; v. Latonia J. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Joel A. (Anonymous), etc. Westchester County Department of Social Services, respondent; v. Latonia J. (Anonymous), appellant. (Proceeding No. 2)
William D. Eddy, White Plains, NY, for appellant. John M. Nonna, County Attorney, White Plains, NY (Jason S. Whitehead of counsel), for respondent. Andrew W. Szczesniak, White Plains, NY, attorney for the children.
William D. Eddy, White Plains, NY, for appellant.
John M. Nonna, County Attorney, White Plains, NY (Jason S. Whitehead of counsel), for respondent.
Andrew W. Szczesniak, White Plains, NY, attorney for the children.
MARK C. DILLON, J.P., BETSY BARROS, PAUL WOOTEN, HELEN VOUTSINAS, JJ.
DECISION & ORDER In related proceedings pursuant to Social Services Law § 384–b, the mother appeals from an order of the Family Court, Westchester County (Nilda Morales–Horowitz, J.), dated August 22, 2022. The order, insofar as appealed from, upon the mother's failure to appear at a hearing, revoked an order of suspended judgment of the same court dated March 8, 2022, terminated the mother's parental rights to the subject children, and freed the children for adoption.
ORDERED that the appeal is dismissed, without costs or disbursements, except insofar as it brings up for review the denial of the application of the mother's attorney for an adjournment (see CPLR 5511 ; Matter of Zowa D.P. [Jenia W.], 190 A.D.3d 744, 744, 135 N.Y.S.3d 879 ); and it is further,
ORDERED that the order is affirmed insofar as reviewed, without costs or disbursements.
In 2020, the petitioner commenced these proceedings to terminate the mother's parental rights to the subject children on the ground of permanent neglect. The mother consented to a finding of permanent neglect, and an order of suspended judgment dated March 8, 2022, was issued upon certain conditions. After the mother allegedly violated the terms and conditions of the suspended judgment, the petitioner moved to revoke the order of suspended judgment and terminate the mother's parental rights.
On July 7, 2022, the mother failed to appear at a violation hearing, and her attorney made an application for an adjournment. The Family Court denied the application and proceeded with the hearing. The mother's attorney did not participate in the hearing in the mother's absence. After the hearing, the court issued an order, inter alia, revoking the order of suspended judgment, terminating the mother's parental rights, and freeing the children for adoption. The mother appeals.
The mother's failure to appear at the hearing constituted a default. Although the mother's attorney was present, after the Family Court denied the attorney's application to adjourn the hearing, the attorney made it clear that he was no longer participating in the hearing (see Matter of Zowa D.P. [Jenia W.], 190 A.D.3d at 744, 135 N.Y.S.3d 879 ; Matter of Jeremiah G.F. [Gideon F.], 160 A.D.3d 731, 732, 73 N.Y.S.3d 609 ). Since the order appealed from was made upon the mother's default, "review is limited to matters which were the subject of contest in the Family Court" ( Matter of Navyiah Sarai U. [Erica U.], 211 A.D.3d 959, 960, 180 N.Y.S.3d 259 ; see CPLR 5511 ; Matter of Vallencia P. [Valdissa R.], 215 A.D.3d 850, 851, 186 N.Y.S.3d 383 ).
The denial of the application of the mother's attorney to adjourn the hearing can be reviewed on appeal because that request was the subject of contest in the Family Court (see Matter of Zowa D.P. [Jenia W.], 190 A.D.3d at 745, 135 N.Y.S.3d 879 ; Matter of Demetrious L.K. [James K.], 157 A.D.3d 796, 796, 66 N.Y.S.3d 901 ). In light of, inter alia, the untimely application for an adjournment, the lack of a reasonable explanation for the mother's absence, the mother's history of missing court dates, and the merits of the proceedings, the Family Court providently exercised its discretion in denying the mother's attorney's application for an adjournment (see Matter of Zowa D.P. [Jenia W.], 190 A.D.3d at 745, 135 N.Y.S.3d 879 ; Matter of Demetrious L.K. [James K.], 157 A.D.3d at 797, 66 N.Y.S.3d 901 ; Matter of Sanaia L. [Corey W.], 75 A.D.3d 554, 554–555, 903 N.Y.S.2d 916 ).
DILLON, J.P., BARROS, WOOTEN and VOUTSINAS, JJ., concur.