Onondaga Cnty. Dep't of Children & Family Servs. v. Karen A. (In re Hayden A.)

• Decision Date: 20 November 2020
• Docket Number: 1044,CAF 19-00653
• Citation: 132 N.Y.S.3d 914 (Mem),188 A.D.3d 1759
• Parties: In the MATTER OF HAYDEN A. Onondaga County Department of Children and Family Services, Petitioner-Respondent; v. Karen A., Respondent-Appellant. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 1759

132 N.Y.S.3d 914 (Mem)

In the MATTER OF HAYDEN A.Onondaga County Department of Children and Family Services, Petitioner-Respondent;

v.Karen A., Respondent-Appellant. (Appeal No. 2.)

1044

CAF 19-00653

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

Entered: November 20, 2020

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT-APPELLANT.

ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (YVETTE VELASCO OF COUNSEL), FOR PETITIONER-RESPONDENT.

KAREN J. DOCTER, FAYETTEVILLE, ATTORNEY FOR THE CHILD.

PRESENT: SMITH, J.P., CURRAN, TROUTMAN, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that said appeal is unanimously dismissed except insofar as respondent challenges the denial of her attorney's request for an adjournment and the corrected order is reversed on the law without costs and the matter is remitted to Family Court, Onondaga County, for further proceedings in accordance with the following memorandum: In this proceeding pursuant to Social Services Law § 384-b, respondent mother appeals from a corrected order entered upon her default that, inter alia, determined that the subject child had been abandoned and terminated the mother's parental rights with respect to that child. The mother failed to appear at the fact-finding hearing on the petition to terminate her parental rights and, although her attorney was present at the hearing, she did not participate. Thus, we conclude that the mother's unexplained failure to appear at the hearing constituted a default (see Matter of Lastanzea L. [Lakesha L.] , 87 A.D.3d 1356, 1356, 929 N.Y.S.2d 922 [4th Dept. 2011], lv dismissed in part and denied in part 18 N.Y.3d 854, 938 N.Y.S.2d 844, 962 N.E.2d 267 [2011] ; Matter of Tiara B. [Appeal No. 2], 64 A.D.3d 1181, 1181-1182, 881 N.Y.S.2d 754 [4th Dept. 2009] ). Although "[n]o appeal lies from an order entered upon the default of the appealing party" ( Matter of Heavenly A. [Michael P.] , 173 A.D.3d 1621, 1622, 105 N.Y.S.3d 227 [4th Dept. 2019] ; see Matter of Maria P. [Anthony P.] , 182 A.D.3d 1028, 1029, 121 N.Y.S.3d 700 [4th Dept. 2020] ), the appeal nevertheless brings up for review any issue that was subject to contest in the proceedings below, i.e., Family Court's failure to grant the request of the mother's attorney for an adjournment (see Matter of Ramere D. [Biesha D.] , 177 A.D.3d 1386, 1386-1387, 110 N.Y.S.3d 618 [4th Dept. 2019], lv denied 35 N.Y.3d 904, 2020 WL 2203889 [2020] ; Matter of Paulino v. Camacho , 36 A.D.3d 821, 822, 828 N.Y.S.2d 496 [2d Dept. 2007] ).

We agree with the mother that the court abused its discretion in failing to grant her attorney's request for an adjournment (see generally Matter of Anthony M. , 63 N.Y.2d 270, 283, 481 N.Y.S.2d 675, 471 N.E.2d 447 [1984] ). Under the unique circumstances of this case, i.e., that the court was aware of the mother's history of mental illness, that this was the first request for an adjournment on the mother's behalf, and that the child's situation would remain unaltered if the adjournment had been granted, the court improperly denied the request for an adjournment (see generally Matter of Sullivan v. Sullivan , 173 A.D.3d 1844, 1845, 105 N.Y.S.3d 669 [4th Dept. 2019] ; Matter of Nicole J. , 71 A.D.3d 1581, 1582, 896 N.Y.S.2d 918 [4th Dept. 2010] ). In addition, we conclude that the court abused its discretion...