Tara O, Matter of
| Decision Date | 02 March 1995 |
| Citation | 213 A.D.2d 753,622 N.Y.S.2d 1009 |
| Parties | In the Matter of TARA "O" 1 et al., Alleged to be Neglected Children. Madison County Department of Social Services, Respondent; Jim "Q", 1 Appellant. |
| Court | New York Supreme Court — Appellate Division |
Gerald D. Raymond, Oneida, for appellant.
Karen A. Hastie, Dept. of Social Services, Wampsville, for respondent.
Before CARDONA, P.J., and MERCURE, WHITE, CASEY and PETERS, JJ.
Appeal from an order of the Family Court of Madison County (Humphreys, J.), entered September 27, 1993, which partially granted petitioner's application, in a proceeding pursuant to Family Court Act article 10, to adjudicate Tara "O" a neglected child.
On this appeal from the order embodying Family Court's finding that respondent was responsible for the neglect of his girlfriend's infant daughter (born in 1991), the contentions advanced by respondent lack merit and do not warrant extended discussion. First, having been made aware that respondent received notice of the hearing (and, in fact, through his counsel worked out a proposed disposition of the petition) but failed to appear because of a "hangover", Family Court was authorized to proceed with the fact-finding hearing in respondent's absence (see, Family Ct.Act §§ 1041, 1042; Matter of Geraldine Rose W. [Vanessa W.], 196 A.D.2d 313, 609 N.Y.S.2d 324, lv dismissed 84 N.Y.2d 967, 621 N.Y.S.2d 514, 645 N.E.2d 1213; Matter of Raymond Dean L., 109 A.D.2d 87, 490 N.Y.S.2d 75). In any event, respondent's failure to submit an affidavit in support of an application for rehearing in Family Court bars him from raising the issue on appeal (see, Family Ct.Act § 1042; Matter of Geraldine Rose W. [Vanessa W.], supra ). Second, the evidence produced at the fact-finding hearing, particularly the testimony of the child's great-grandmother, provided a sufficient basis for a finding that the child was neglected and that respondent was responsible therefor (see, Matter of Michelle S. [Kathy S.], 195 A.D.2d 721, 600 N.Y.S.2d 303; Matter of Melissa R. [Edward R.], 162 A.D.2d 754, 557 N.Y.S.2d 668).
ORDERED that the order is affirmed, without costs.
1 Fictitious names.
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Natanya Sharay G., Matter of
... ... hearing, after which the court found that the "child in question [wa]s a permanently neglected child", she is barred from raising the issue on appeal, given that the proper procedure is to move to vacate the default and, if necessary, appeal from the denial of that motion (see, Matter of Tara O., 213 A.D.2d 753, 622 N.Y.S.2d 1009; Matter of Geraldine Rose W., 196 A.D.2d 313, 315, 609 N.Y.S.2d 324; (Matter of Ashley X., 200 A.D.2d 911, 608 N.Y.S.2d 886) ... In any event, the petitioner, the Commissioner of Social Services of the City of New York, has met its burden of ... ...