Westchester Cnty. Dep't of Soc. Servs. v. Jenia W. (In re Zowa D.P.)

• Decision Date: 13 January 2021
• Docket Number: Docket No. B–6773–18,2019–11996
• Citation: 135 N.Y.S.3d 879 (Mem),190 A.D.3d 744
• Parties: In the MATTER OF ZOWA D.P. (Anonymous). Westchester County Department of Social Services, respondent; v. Jenia W. (Anonymous), appellant.
• Court: New York Supreme Court — Appellate Division

190 A.D.3d 744

135 N.Y.S.3d 879 (Mem)

In the MATTER OF ZOWA D.P. (Anonymous).

Westchester County Department of Social Services, respondent;

v.Jenia W. (Anonymous), appellant.

2019–11996

Docket No. B–6773–18

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

Submitted—December 14, 2020

January 13, 2021

Carol Carozza, New Rochelle, NY, for appellant.

John M. Nonna, County Attorney, White Plains, N.Y. (David H. Chen and Jonathan W. Campozano of counsel), for respondent.

Thomas F. Fanelli, Jr., White Plains, NY, attorney for the child.

MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.

DECISION & ORDER

In a proceeding pursuant to Social Services Law § 384–b, the mother appeals from an order of fact-finding and disposition of the Family Court, Westchester County (Michelle I. Schauer, J.), dated August 26, 2019. 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 the petitioner 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 subject child was born in 2008. In June 2018, the petitioner commenced this proceeding pursuant to Social Services Law § 384–b to terminate the mother's parental rights on the ground of abandonment. After the mother failed to appear at a continued fact-finding hearing, the Family Court denied the mother's attorney's request to adjourn the hearing. Thereafter, the court made factual findings, upon the mother's default, that the petition was established. The court determined that a dispositional hearing was unwarranted and immediately made a disposition, upon the mother's default, terminating the mother's parental rights and freeing the child for adoption. The mother appeals from the order of fact-finding and disposition.

We agree with the Family Court's determination that the mother's failure to appear in court on the fourth and final day of the fact-finding hearing constituted a default. Although the mother's attorney was present on that day, after the court denied the request to adjourn the hearing, the attorney made it clear that the attorney was no longer participating in the hearing (see Matter of Andrew J.U.M. [Jelaine E.M.], 154 A.D.3d 758, 758, 62 N.Y.S.3d 158 ; Matter of Zulme v. Maehrlein, 133 A.D.3d 608, 609, 18 N.Y.S.3d 552 ; Matter of Iyana W. [Shamark W.], 124 A.D.3d 418, 418, 1 N.Y.S.3d 48 ; Matter of Li Wong v. Fen Liu, 121 A.D.3d 692, 693, 993 N.Y.S.2d 372 ; Matter of Joseph Kenneth B., 47 A.D.3d 809, 850 N.Y.S.2d 543 ). Since no appeal lies from an order entered on default, the order is not appealable (see CPLR 5511 ; Matter of Saporito v. Ward, 160 A.D.3d 651, 73 N.Y.S.3d 606 ; Matter of Andrew J.U.M. [Jelaine E.M.], 154 A.D.3d 758, 759, 62 N.Y.S.3d 158 ).

However, the denial of the mother's attorney's application to adjourn the continued fact-finding hearing is appealable because that request was " ‘the subject of contest below’ " ( Matter of Andrew J.U.M. [Jelaine E.M.], 154 A.D.3d at 759, 62 N.Y.S.3d 158, quoting Adotey v. British Airways, PLC, 145 A.D.3d 748, 749, 44 N.Y.S.3d 82 ). Here, in light of, inter alia, the lack of a reasonable explanation for the mother's absence, the mother's history of missing court dates, the length of the pendency of the proceeding, and the merits of the...