Matter of Myasia QQ. , 21 N.Y.S.3d 361 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 19, 2015 519069
________________________________
In the Matter of MYASIA QQ.,
Alleged to be a Permanently
Neglected Child.
ALBANY COUNTY DEPARTMENT FOR
CHILDREN, YOUTH AND MEMORANDUM AND ORDER
FAMILIES,
Respondent;
MAHALIA QQ.,
Appellant.
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Calendar Date: October 19, 2015
Before: McCarthy, J.P., Rose, Devine and Clark, JJ.
__________
Bruce Evans Knoll, Albany, for appellant.
James J. Green, Albany County Department for Children,
Youth and Families, Albany, for respondent.
Tracey A. Brown, Delmar, attorney for the child.
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Rose, J.
Appeal from an order of the Family Court of Albany County
(Walsh, J.), entered April 21, 2014, which granted petitioner's
application, in a proceeding pursuant to Social Services Law
§ 384-b, to adjudicate Myasia QQ. to be a permanently neglected
child, and terminated respondent's parental rights.
Respondent is the mother of Myasia QQ. (born in 2011). The
child has resided with her paternal aunt since December 2011
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pursuant to Family Court orders, and respondent thereafter
admitted to neglecting her. In October 2013, petitioner filed a
permanent neglect petition seeking to terminate respondent's
parental rights. Respondent appeared at the first two court
appearances on the petition, but did not appear at the scheduled
trial date on January 24, 2014. Respondent's counsel indicated
that her attempts to contact respondent that morning had been
unsuccessful, and she had no explanation for her absence. Family
Court thereafter granted petitioner's motion, supported by the
attorney for the child, for a default order on permanent neglect.
After an inquest at which petitioner's caseworker testified, the
court terminated respondent's parental rights and placed the
child in the custody of petitioner.1 Respondent now appeals.
We are unpersuaded by respondent's contention that Family
Court erred in finding that she had defaulted on the permanent
neglect petition by not appearing on the scheduled trial date.
"To be sure, a respondent's failure to appear at a fact-finding
or dispositional hearing does not automatically result in a
default," as where counsel appears, explains a client's absence,
objects to a finding of default, and actively participates by
cross-examining witnesses, offering proof or making motions or
arguments (Matter of Semonae YY., 239 AD2d 716, 716 [1997]; see
Matter of N. [Fania D.-Alice T.], 108 AD3d 551, 552 [2013];
Matter of Corey UU. [Donna UU.], 85 AD3d 1255, 1256 n 1 [2011],
lv denied 17 NY3d 708 [2011]). Here, despite being notified of
the scheduled trial date, respondent did not appear and no excuse
or explanation was provided for her absence. Contrary to her
claim, she was not denied the opportunity to participate in the
hearing (cf. Matter of Sonara HH. [Robert HH.], 128 AD3d 1122,
1123-1124 [2015], lvs dismissed 25 NY3d 1220, 1221 [2015]).
Moreover, while her counsel appeared, she did not explain
respondent's absence and took no part in the proceedings,
expressly declining to take a position in order to preserve
respondent's "right to reopen the default." Thus, Family Court
properly concluded that, notwithstanding the appearance of
1
The child's father was incarcerated and did not appear on
the scheduled trial date, but later appeared by phone and
consented to the award of custody of the child to his aunt.
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counsel on her behalf, respondent defaulted on the petition (see
Matter of Devon W. [Lavern D.], 127 AD3d 1098, 1099 [2015];
Matter of Deshane v Deshane, 123 AD3d 1243, 1244 [2014], lv
denied 25 NY3d 901 [2015]; Matter of Naomi KK. v Natasha LL., 80
AD3d 834, 835 [2011], lv denied 16 NY3d 711 [2011]).
Moreover, no appeal is permitted from an order entered upon
a default (see CPLR 5511; Matter of Scott v Jenkins, 62 AD3d
1053, 1054 [2009], lv denied 13 NY3d 705 [2009]). The proper
procedure was for respondent to move to vacate the default order
and establish a reasonable excuse for her default and a
potentially meritorious defense (see CPLR 5015 [a] [1]) and, if
the motion were denied, to appeal from such denial (see Matter of
Deshane v Deshane, 123 AD3d at 1244; Matter of Scott KK. v
Patricia LL., 110 AD3d 1260, 1261 [2013], lv dismissed and denied
22 NY3d 1054 [2014]; Matter of Naomi KK. v Natasha LL., 80 AD3d
at 835). Thus, Family Court's entry of a default order was
proper and the appeal therefrom must be dismissed.
McCarthy, J.P., Devine and Clark, JJ., concur.
ORDERED that the appeal is dismissed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court