Opinion
2016–12140 2016–12147 Docket No. B–5474–16
01-17-2018
In the MATTER OF DEMETRIOUS L.K. (Anonymous). Suffolk County Department of Social Services, respondent; v. James K. (Anonymous), appellant.
Arza Feldman, Uniondale, NY, for appellant. Dennis M. Brown, County Attorney, Central Islip, N.Y. (Steven B. Nacht of counsel), for respondent. Heather A. Fig, Bayport, NY, attorney for the child.
Arza Feldman, Uniondale, NY, for appellant.
Dennis M. Brown, County Attorney, Central Islip, N.Y. (Steven B. Nacht of counsel), for respondent.
Heather A. Fig, Bayport, NY, attorney for the child.
MARK C. DILLON, J.P., ROBERT J. MILLER, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDER Appeals from two orders of fact-finding and disposition of the Family Court, Suffolk County (Caren Loguercio, J.), both dated September 8, 2016. The orders, after fact-finding and dispositional hearings, and upon the father's failure to appear at the hearings, found that the father permanently neglected the subject child, terminated his parental rights, and transferred custody and guardianship of the child to the petitioner for the purpose of adoption.
ORDERED that the appeals are dismissed, without costs or disbursements, except insofar as they bring up for review the denial of the father's requests for an adjournment (see CPLR 5511 ; Katz v. Katz, 68 A.D.2d 536, 418 N.Y.S.2d 99 ); and it is further,
ORDERED that the orders of fact-finding and disposition are affirmed insofar as reviewed, without costs or disbursements.
The petitioner commenced this proceeding to terminate the father's parental rights to the subject child. The father failed to appear at a fact-finding hearing, and his attorney's requests for an adjournment were denied. Following the fact-finding hearing and a dispositional hearing, at which the father also failed to appear, the Family Court found that the father permanently neglected the child, terminated his parental rights, and transferred custody and guardianship of the child to the petitioner for the purpose of adoption. The father appeals.
Where, as here, an order is made upon the appellant's default, "review is limited to matters which were the subject of contest below" ( Matter of Constance P. v. Avraam G., 27 A.D.3d 754, 755, 813 N.Y.S.2d 463 [internal quotation marks omitted]; see James v. Powell, 19 N.Y.2d 249, 256 n. 3, 279 N.Y.S.2d 10, 225 N.E.2d 741 ; Matter of Ca'leb R.D. [Mary D.S.], 121 A.D.3d 890, 892, 994 N.Y.S.2d 395 ; Matter of Angie N.W. [Melvin A.W.], 107 AD3d 907, 968 N.Y.S.2d 125 ). Accordingly, here, review is limited to the denial of the father's requests for an adjournment, which were made by his attorney prior to and during the fact-finding hearing (see Matter of Angie N.W. [Melvin A.W.], 107 A.D.3d 907, 968 N.Y.S.2d 125 ; Matter of Tripp, 101 A.D.3d 1137, 957 N.Y.S.2d 389 ; Matter of Paulino v. Camacho, 36 A.D.3d 821, 828 N.Y.S.2d 496 ).
"The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court" ( Matter of Anthony M., 63 N.Y.2d 270, 283, 481 N.Y.S.2d 675, 471 N.E.2d 447 ; see Matter of Angie N.W. [Melvin A.W.], 107 A.D.3d 907, 968 N.Y.S.2d 125 ). "In making such a determination, the court must undertake a balanced consideration of all relevant factors" ( Matter of Sicurella v. Embro, 31 A.D.3d 651, 651, 819 N.Y.S.2d 75 ; see Matter of Tripp, 101 A.D.3d 1137, 957 N.Y.S.2d 389 ). Here, in light of, inter alia, the untimely requests for an adjournment, the lack of notice to the court and counsel, the lack of a reasonable explanation for the father's absences, and the merits of the proceeding, the Family Court providently exercised its discretion in denying the father's requests for an adjournment (see Matter of Ca'leb R.D. [Mary D.S.], 121 A.D.3d at 892, 994 N.Y.S.2d 395 ; see Matter of Tripp, 101 A.D.3d at 1138–1139, 957 N.Y.S.2d 389 ; Matter of Willie Ray B. [Deanna W.B.], 77 A.D.3d 657, 908 N.Y.S.2d 371 ; Matter of Sanaia L. [Corey W.], 75 A.D.3d 554, 903 N.Y.S.2d 916 ; Matter of Dakota B. [Brigitta B.], 73 A.D.3d 763, 899 N.Y.S.2d 631 ; Matter of Amber Megan D., 54 A.D.3d 338, 862 N.Y.S.2d 568 ). Moreover, under the circumstances of this case, the father was not deprived of due process (see Matter of Sean P.H. [Rosemarie H.], 122 A.D.3d 850, 850–851, 995 N.Y.S.2d 744 ; Matter of Lillian D.L., 29 A.D.3d 583, 584, 813 N.Y.S.2d 784 ).
DILLON, J.P., MILLER, BARROS and CHRISTOPHER, JJ., concur.