Aida B. v. Alfredo C.

• Court: New York Supreme Court Appellate Division
• Citation: 2014 N.Y. Slip Op. 01224,980 N.Y.S.2d 601,114 A.D.3d 1046
• Parties: In the Matter of AIDA B., Respondent, v. ALFREDO C., Appellant, et al., Respondent.
• Decision Date: 20 February 2014

114 A.D.3d 1046
980 N.Y.S.2d 601
2014 N.Y. Slip Op. 01224

In the Matter of AIDA B., Respondent,
v.
ALFREDO C., Appellant, et al., Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Feb. 20, 2014.

[980 N.Y.S.2d 603]

Leah W. Casey, Schenectady, for appellant.

Aaron A. Louridas, Delmar, for Aida B., respondent.

Karen R. Crandall, Schenectady, attorney for the children.

Before: PETERS, P.J., LAHTINEN, STEIN and EGAN JR., JJ.

LAHTINEN, J.

Appeal from two orders of the Family Court of Schenectady County (Taub, J.H.O.), entered August 15, 2012 and August 28, 2012, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 6, for custody of respondents' children.

Respondent Alfredo C. (hereinafter the father) and respondent Gwendolyn E. (hereinafter the mother) are the parents of three children, Chassity (born in 2006), Niaire (born in 2007) and Margarita (born in 2009), who are the subjects of this proceeding. After the couple separated, the mother took physical custody of the children and an order was entered on consent in July 2010, permitting the father parenting time every Saturday between 10:00 a.m. and 4:00 p.m. Shortly thereafter, in September 2010, the Schenectady County Department of Social Services (hereinafter DSS) commenced a neglect proceeding against the mother, and Family Court (Powers, J.) issued an order the next day temporarily removing the children from the home and placing them in the custody of DSS. In January 2011, Family Court issued a modified order, placing the children with petitioner, their paternal grandmother. Thereafter, in August 2011, Family Court issued an order finding the children to be neglected, placing the children under the care of DSS for one year and committing them to the care of petitioner.

Petitioner commenced this proceeding in March 2012, seeking custody of the children. Following several conferences, the court commenced a trial on July 31, 2012 at which DSS was present, petitioner and the mother appeared with counsel and the father was represented by counsel, but did not appear. The parties informed Family Court (Taub, J.H.O.) that they had reached an agreement that the parties would share joint legal custody of the children with primary physical custody and final decision-making authority residing with petitioner and, as relevant here, the father would have visitation on Saturdays and Sundays from 12:00 p.m. to 6:00 p.m. However, petitioner objected to the father's proposed visitation and the court then commenced the hearing, after which it proclaimed that the father had “defaulted,” and ordered joint legal custody to petitioner, the father and the mother with primary physical custody to petitioner. Furthermore, the court directed parenting time for the father at the times and places mutually agreeable to petitioner and him, subject to conditions set by petitioner with respect to supervision. The court's decision was reduced to a written order and a superceding order in August 2012 from which the father now appeals.

We modify. As a threshold matter, we find unpersuasive the father's argument that Family Court abused its discretion

[980 N.Y.S.2d 604]

by directing the trial scheduled for July 31, 2012 to begin in his absence. A full evidentiary hearing was conducted, the father was competently represented by counsel, who indicated that she would proceed without him, and the court rendered its decision on the merits ( see Matter of Rosalyn YY. v. Otsego County Dept. of Social Servs., 101 A.D.3d 1401, 1403, 956 N.Y.S.2d 322 [2012];Matter of Corey UU. [Donna UU.], 85 A.D.3d 1255, 1256 n. 1, 924 N.Y.S.2d 214 [2011],lv. denied17 N.Y.3d 708, 2011 WL 4027481 [2011] ). Nor did the court abuse its discretion in declining to grant an adjournment for the purpose of the father's attendance and testimony ( see Matter of Steven B., 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646 [2006];Matter of Rosalyn YY. v. Otsego...