G., ATREYU, MTR. OF ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
155
CAF 10-02508
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, GORSKI, AND MARTOCHE, JJ.
IN THE MATTER OF ATREYU G. AND REYAUNA G.
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ONONDAGA COUNTY DEPARTMENT OF SOCIAL SERVICES, MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;
JANA M., RESPONDENT-APPELLANT,
ET AL., RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR RESPONDENT-APPELLANT.
GORDON J. CUFFY, COUNTY ATTORNEY, SYRACUSE (SARA J. LANGAN OF
COUNSEL), FOR PETITIONER-RESPONDENT.
SUSAN B. MARRIS, ATTORNEY FOR THE CHILDREN, MANLIUS, FOR ATREYU G. AND
REYAUNA G.
Appeal from an order of the Family Court, Onondaga County (Martha
E. Mulroy, J.), entered December 10, 2010 in a proceeding pursuant to
Social Services Law § 384-b. The order, among other things,
terminated respondents’ parental rights and transferred custody of the
subject children to petitioner.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Social Services Law §
384-b, respondent mother appeals from an order that, inter alia,
terminated her parental rights with respect to the two subject
children and ordered that they be freed for adoption. “An appeal from
a dispositional order of Family Court brings up for review the
propriety of a fact-finding order” (Matter of Lisa E. [appeal No. 1],
207 AD2d 983; see generally Matter of Jason S., 36 AD3d 618; Matter of
Baby Boy C., 13 AD3d 619). The mother contends that she was denied
procedural due process because Family Court conducted a fact-finding
hearing in her absence, while she was incarcerated. The mother has
raised that contention for the first time on appeal, however, and thus
has failed to preserve it for our review (see Matter of Derrick T.M.,
286 AD2d 938; see generally Matter of Vanessa S., 20 AD3d 924). In
any event, “ ‘[a] parent’s right to be present for fact-finding and
dispositional hearings in termination cases is not absolute’ ” (Matter
of Giovannie M.-V., 35 AD3d 1244, 1245; see Matter of Eric L., 51 AD3d
1400, 1401, lv denied 10 NY3d 716). Here, the court initially
adjourned the fact-finding hearing when the mother appeared without
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CAF 10-02508
counsel, and the court re-appointed her prior attorney to represent
her. The hearing was rescheduled for several weeks later, but the
mother failed to appear in court on the adjourned date. Although the
mother’s attorney appeared, he stated that he had no information
regarding the mother’s whereabouts, and that she had not met with him
to prepare for the hearing. In addition, the record reflects that the
mother was aware of the proceeding, that she changed her place of
residency frequently throughout the pendency of the proceeding, and
that she refused to apprise petitioner or her attorney of her
addresses prior to court appearances. Furthermore, although the
mother stated that she had been “in jail until that morning,” she made
no attempt to contact the court or her attorney to seek an adjournment
of the hearing, and her statement fails to establish that she was
still in jail when the hearing took place. Thus, “[i]n light of the
amount of time that the children had spent in foster care and the fact
that the mother’s attorney vigorously represented her interests at the
[fact-finding] hearing, we conclude that the court did not abuse its
discretion in conducting the hearing in her absence” (Matter of
La’Derrick J.W., 85 AD3d 1600, 1602, lv denied 17 NY3d 709).
The mother did not request a suspended judgment and thus failed
to preserve for our review her contention that the court should have
granted that relief (see Matter of Rosalinda R., 16 AD3d 1063, lv
denied 5 NY3d 702). “Finally, the mother did not ask the court to
consider post-termination contact with the children in question or to
conduct a hearing on that issue, and we conclude in any event that she
‘failed to establish that such contact would be in the best interests
of the children’ ” (Matter of Christopher J., 60 AD3d 1402, 1403; see
Matter of Andrea E., 72 AD3d 1617, lv denied 15 NY3d 703).
Entered: January 31, 2012 Frances E. Cafarell
Clerk of the Court