Savanna G. Erie Cnty. Dep't of Soc. Servs. v.

• Decision Date: 20 June 2014
• Parties: In the Matter of SAVANNA G. Erie County Department Of Social Services, Petitioner–Respondent; Danyelle M., Respondent–Appellant. (Appeal No. 1.).
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 1482
988 N.Y.S.2d 812
2014 N.Y. Slip Op. 04658

In the Matter of SAVANNA G.
Erie County Department Of Social Services, Petitioner–Respondent;
Danyelle M., Respondent–Appellant. (Appeal No. 1.).

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

June 20, 2014.

Bernadette M. Hoppe, Buffalo, for Respondent–Appellant.

Joseph T. Jarzembek, Buffalo, for Petitioner–Respondent.

David C. Schopp, Attorney for the Child, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel).

PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, VALENTINO, and DeJOSEPH, JJ.

[988 N.Y.S.2d 813]

MEMORANDUM:

In appeal No. 1, respondent mother appeals from an order terminating her parental rights with respect to her daughter on the ground of permanent neglect. In appeal No. 2, the mother appeals from an order revoking a suspended judgment and terminating her parental rights with respect to her son.

Initially, we reject the contention of the Attorney for the Children that the appeals must be dismissed because the orders were entered upon the mother's default. “ ‘A party who is represented at a scheduled court appearance by an attorney has not failed to appear’ ” (Matter of Erie County Dept. of Social Servs. v. Thompson, 91 A.D.3d 1327, 1328, 937 N.Y.S.2d 658). The mother initially appeared at the fact-finding hearing, and her attorney participated in the hearing by presenting an opening statement and cross-examining the first witness. The mother's attorney chose not to participate in the remainder of the hearing when the mother left the courtroom after the first witness testified. Inasmuch as the mother's attorney “appeared at and participated in the hearing” until the mother left the courtroom, “there was no default” (Matter of Danielle M., 26 A.D.3d 748, 748, 808 N.Y.S.2d 873,lv. denied7 N.Y.3d 703, 819 N.Y.S.2d 869, 853 N.E.2d 240;see Thompson, 91 A.D.3d at 1328, 937 N.Y.S.2d 658;Matter of Isaiah H., 61 A.D.3d 1372, 1373, 877 N.Y.S.2d 786).

We conclude in appeal No. 1 that Family Court properly determined that the daughter is a permanently neglected child and properly terminated the mother's parental rights with respect to her. “Petitioner met its burden of establishing by clear and convincing evidence that it made diligent efforts to encourage and strengthen the relationship between the mother and [the child] by providing services and other assistance aimed at ameliorating or resolving the problems preventing [the child's] return to [the...