Opinion
118 CAF 20-00943
02-04-2022
In the MATTER OF LARAE L. Onondaga County Department of Children and Family Services, Petitioner-Respondent; v. Heather L., Respondent-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT-APPELLANT. ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (JOSEPH M. MARZOCCHI OF COUNSEL), FOR PETITIONER-RESPONDENT. CATHERINE M. SULLIVAN, OSWEGO, ATTORNEY FOR THE CHILD.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT-APPELLANT.
ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (JOSEPH M. MARZOCCHI OF COUNSEL), FOR PETITIONER-RESPONDENT.
CATHERINE M. SULLIVAN, OSWEGO, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., SMITH, CENTRA, AND PERADOTTO, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: In this proceeding pursuant to Social Services Law § 384-b, respondent mother appeals from an order, entered upon her default, that, inter alia, adjudicated the subject child to be permanently neglected, terminated the mother's parental rights, and transferred custody of the child to petitioner. Preliminarily, contrary to the contention of the Attorney for the Child, the mother properly served and timely filed her notice of appeal (see Family Ct Act §§ 1113, 1115 ; Executive Order [A. Cuomo] No. 202.8 [ 9 NYCRR 8.202.8 ], Executive Order [A. Cuomo] No. 202.67 [ 9 NYCRR 8.202.67 ]; cf. Matter of Fraser v. Fraser , 185 A.D.3d 1444, 1444-1445, 128 N.Y.S.3d 713 [4th Dept. 2020] ). Nonetheless, the order appealed from was entered following a fact-finding and dispositional hearing at which the mother failed to appear and in which her attorney, although present, elected not to participate. The order was thus entered upon the mother's default (see Matter of Tyrone O. [Lillian G.] , 199 A.D.3d 1386, 1387, 154 N.Y.S.3d 543 [4th Dept. 2021] ; Matter of Ramere D. [Biesha D.] , 177 A.D.3d 1386, 1386, 110 N.Y.S.3d 618 [4th Dept. 2019], lv denied 35 N.Y.3d 904, 2020 WL 2203889 [2020] ; Matter of Makia S. [Catherine S.] , 134 A.D.3d 1445, 1445-1446, 21 N.Y.S.3d 653 [4th Dept. 2015] ). Consequently, in this Court's prior order in response to petitioner's motion, we dismissed the mother's appeal except insofar as the mother challenges the denial of her attorney's request for an adjournment or raises any other issue that was the subject of contest before Family Court (see Tyrone O. , 199 A.D.3d at 1387, 154 N.Y.S.3d 543 ; Ramere D. , 177 A.D.3d at 1386, 110 N.Y.S.3d 618 ). Contrary to the mother's contention, we conclude that the court did not abuse its discretion in denying her attorney's request for an adjournment (see Tyrone O. , 199 A.D.3d at 1387, 154 N.Y.S.3d 543 ; Matter of John D., Jr. [John D.] , 199 A.D.3d 1412, 1413, 154 N.Y.S.3d 590 [4th Dept. 2021] ; see generally Family Ct Act § 1048 [a] ). The remaining issue raised by the mother is not reviewable on appeal from the order entered upon her default because it was not a subject of contest before the court (cf. Matter of Dinunzio v. Zylinski , 175 A.D.3d 1079, 1080-1082, 108 N.Y.S.3d 634 [4th Dept. 2019] ).