Opinion
2012-09-28
In the Matter of BRADLEY M.M. Oneida County Department of Social Services, Petitioner–Respondent; Michael M., Respondent–Appellant, and Cindy M., Respondent.
Peter J. Digiorgio, Jr., Utica, for Respondent–Appellant. John A. Herbowy, County Attorney, Utica (Deana D. Previte of Counsel), for Petitioner–Respondent.
Peter J. Digiorgio, Jr., Utica, for Respondent–Appellant. John A. Herbowy, County Attorney, Utica (Deana D. Previte of Counsel), for Petitioner–Respondent.
A.J. Bosman, Attorney for the Child, Rome, for Bradley M.M.
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
MEMORANDUM:
Respondent father appeals from an order of disposition, which brings up for review the order of fact-finding wherein Family Court found that the father neglected the subject child ( seeCPLR 5501[a][1]; Matter of Chase F. [Michael G.], 91 A.D.3d 1057, 1058, 935 N.Y.S.2d 925,lv. denied19 N.Y.3d 801, 2012 WL 1500641). We note that the order of fact-finding recites that it was entered upon the father's default, and it is well settled that no appeal lies from an order entered on default ( see Matter of Williams v. Lewis, 269 A.D.2d 841, 841, 703 N.Y.S.2d 764). Nevertheless, we agree with the father that the court erred in entering the fact-finding order on his alleged default ( see id.). Here, the father's failure to appear at the scheduled court appearance did not constitute a default inasmuch as the father's attorney advised the court that he was authorized to proceed in the father's absence, and the father's attorney objected to the entry of a default order ( see Matter of Shemeco D., 265 A.D.2d 860, 860, 695 N.Y.S.2d 799;Matter of Cassandra M., 260 A.D.2d 961, 962–963, 689 N.Y.S.2d 279). On the merits, we conclude that the court erred in making a finding of neglect without first conducting a fact-finding hearing. “In the absence of a fact-finding hearing, there was no factual support for the finding that the [subject] child[ ][was] neglected” ( Shemeco D., 265 A.D.2d at 860, 695 N.Y.S.2d 799). We therefore reverse the order and remit the matter to Family Court for further proceedings on the petition ( see Williams, 269 A.D.2d at 841, 703 N.Y.S.2d 764).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Family Court, Oneida County, for further proceedings on the petition.