Mercyfirst v. S (In re Andrew J.U.M.)

• Decision Date: 11 October 2017
• Docket Number: 2016-08818, Docket No. B-159-15.
• Citation: 62 N.Y.S.3d 158,154 A.D.3d 758
• Parties: In the Matter of ANDREW J.U.M., also known as Andrew M. (Anonymous). MercyFirst, et al., respondents; Jelaine E.M. (Anonymous), appellant.
• Court: New York Supreme Court — Appellate Division

154 A.D.3d 758

62 N.Y.S.3d 158

In the Matter of ANDREW J.U.M., also known as Andrew M. (Anonymous). MercyFirst, et al., respondents; Jelaine E.M. (Anonymous), appellant.

2016-08818, Docket No. B-159-15.

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

Oct. 11, 2017.

Austin I. Idehen, Jamaica, NY, for appellant.

Warren & Warren, P.C., Brooklyn, NY (Ira L. Eras of counsel), for respondent MercyFirst.

Seymour W. James, Jr., New York, NY (Tamara A. Steckler and Amy Hausknecht of counsel), attorney for the child.

JOHN M. LEVENTHAL, J.P., BETSY BARROS, VALERIE BRATHWAITE NELSON, and LINDA CHRISTOPHER, JJ.

Appeal by the mother from an order of fact-finding and disposition of the Family Court, Kings County (Alan Beckoff, J.), dated July 18, 2016. The order, upon the mother's failure to appear at a continued fact-finding hearing, found that the mother abandoned the subject child, terminated the mother's parental rights, and transferred custody and guardianship of the child to MercyFirst and the Commissioner of the Administration for Children's Services for the purpose of adoption.

ORDERED that the appeal is dismissed, without costs or disbursements, except insofar as it brings up for review the denial of the mother's attorney's application for an adjournment; and it is further,

ORDERED that the order of fact-finding and disposition is affirmed insofar as reviewed, without costs or disbursements.

The Family Court properly determined that the mother's failure to appear in court on the third and final day of the fact-finding hearing constituted a default.

Although the mother's attorney was present on that day, the attorney made it clear that the attorney was no longer participating in the trial, and she was unable to explain the mother's absence (see Matter of Iyana W. [Shamark W.], 124 A.D.3d 418, 1 N.Y.S.3d 48 ; Matter of Jalaya A.C. [Diedra J.], 112 A.D.3d 623,624, 977 N.Y.S.2d 46 ; Matter of Joseph N., 45 A.D.3d 849, 846 N.Y.S.2d 359 ; Matter of T'Challaarkiesha Janette Jouslin R.–D.,

25 A.D.3d 803,804 ; Matter of

Hill v. Hillenbrand, 12 A.D.3d 980, 981, 785 N.Y.S.2d 555 ). Since no appeal lies from an order entered on default, the order is not appealable (see CPLR 5511 ; Matter of

Jayden R., 61 A.D.3d 486, 881 N.Y.S.2d 32 ; Matter of Darryl P., 228 A.D.2d 176, 643 N.Y.S.2d 986 ).

However, the denial of the mother's attorney's application to adjourn the rest of the fact-finding hearing is appealable because that request was "the subject of contest below" ( Adotey v. British Airways, PLC, 145 A.D.3d 748, 749, 44 N.Y.S.3d 82 [internal quotation marks omitted]; Matter of William Jamal W. [Marjorie C.], 89 A.D.3d 502, 932 N.Y.S.2d 338 ; Diamond v. Diamante, 57 A.D.3d 826, 827, 869 N.Y.S.2d 609 ; Matter of Constance P. v. Avraam G., 27 A.D.3d 754, 755, 813 N.Y.S.2d 463 ). The Family Court providently exercised its...