Matter of Marvin B.
| Decision Date | 24 March 2009 |
| Docket Number | 2008-04556,(Docket No. B-28114/05). |
| Citation | 2009 NY Slip Op 02356,60 A.D.3d 941,876 N.Y.S.2d 111 |
| Parties | In the Matter of LEAVON MARVIN B., Also Known as LEAVON B., Also Known as LEAVON W., Appellant. SCO FAMILY OF SERVICES et al., Respondents; PAULINE B., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the appeal from so much of the order as terminated the father's parental rights and freed the child for adoption, upon the father's default in appearing at the dispositional hearing, is dismissed, without costs or disbursements; and it is further,
Ordered that the order is affirmed insofar as reviewed, without costs or disbursements.
Since the father did not appear at, and his attorney did not participate in, the dispositional hearing, those portions of the order which terminated the father's parental rights and freed the child for adoption were entered upon his default and are not appealable (see Matter of Joseph Kenneth B., 47 AD3d 809 [2008]; Matter of Jessica Dee D., 6 AD3d 435 [2004]). However, because the father was present at the fact-finding hearing, he may appeal from those portions of the order which found, inter alia, that he permanently neglected the child (see Matter of Amber Megan D., 54 AD3d 338 [2008]; Matter of Vanessa M., 263 AD2d 542 [1999]).
In a proceeding to terminate parental rights based on permanent neglect, the presentment agency must establish, as a threshold matter, that it exerted diligent efforts to encourage and strengthen the parental relationship (see Matter of Sheila G., 61 NY2d 368, 373 [1984]). However, because the incarcerated father failed to keep the agency apprised of his whereabouts for at least six months, the agency's obligation to demonstrate diligent efforts was excused (see Social Services Law § 384-b [7] [a], [e] [i]; ...
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...more, and the mother failed to keep the DSS apprised of her whereabouts ( see Social Services Law § 384–b[7][a]; Matter of Leavon Marvin B., 60 A.D.3d 941, 876 N.Y.S.2d 111; Matter of Kimberly Vanessa J., 37 A.D.3d 185, 186, 829 N.Y.S.2d 473). As to the finding of permanent neglect ( see So......
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