Opinion
676 CAF 19-02010
11-19-2021
In the MATTER OF JOHN D., Jr., Ny'Jeem D., and Syncere D. Onondaga County Department of Children and Family Services, Petitioner-Respondent; v. John D., Respondent-Appellant. (Appeal No. 2.)
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT-APPELLANT. ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (YVETTE VELASCO OF COUNSEL), FOR PETITIONER-RESPONDENT. SUSAN B. MARRIS, MANLIUS, ATTORNEY FOR THE CHILDREN.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT-APPELLANT.
ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (YVETTE VELASCO OF COUNSEL), FOR PETITIONER-RESPONDENT.
SUSAN B. MARRIS, MANLIUS, ATTORNEY FOR THE CHILDREN.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal is unanimously dismissed except insofar as respondent John D. challenges the denial of his attorney's request for an adjournment, and the order is affirmed without costs.
Memorandum: In appeal No. 1, respondent mother and respondent father each appeal from an order of fact-finding and disposition that, among other things, adjudged that respondents had neglected Syncere D. and placed that child in the custody of petitioner. In appeal No. 2, the father appeals from an order pursuant to Social Services Law § 384-b that, inter alia, terminated his parental rights with respect to John D., Jr., Ny'Jeem D., and Syncere on the ground of abandonment upon his default. In appeal No. 3, the mother appeals from an order that, inter alia, terminated her parental rights with respect to Syncere on the ground of abandonment upon her default. In appeal Nos. 4 and 5, the mother appeals from orders that, inter alia, terminated her parental rights with respect to Ny'Jeem and John Jr., respectively, based on permanent neglect. In appeal No. 6, the mother appeals from an order of fact-finding and disposition that, among other things, adjudged that she had neglected Syre'nity D. and placed that child in the custody of petitioner.
Addressing first appeal Nos. 2 and 3, we note that both orders in those appeals were entered following fact-finding and dispositional hearings at which respondents failed to appear and in which their attorneys, although present, elected not to participate (see Matter of Makia S. [Catherine S.] , 134 A.D.3d 1445, 1445-1446, 21 N.Y.S.3d 653 [4th Dept. 2015] ; Matter of Shawn A. [Milisa C.B.] , 85 A.D.3d 1598, 1598-1599, 924 N.Y.S.2d 902 [4th Dept. 2011], lv denied 17 N.Y.3d 713, 2011 WL 4916617 [2011] ). Where, as here, the relevant orders appealed from are made upon respondents’ default, " ‘review is limited to matters which were the subject of contest below’ " ( Matter of Ramere D. [Biesha D.] , 177 A.D.3d 1386, 1386, 110 N.Y.S.3d 618 [4th Dept. 2019], lv denied 35 N.Y.3d 904, 2020 WL 2203889 [2020] ; see Matter of DiNunzio v. Zylinski , 175 A.D.3d 1079, 1080, 108 N.Y.S.3d 634 [4th Dept. 2019] ; Matter of Paulino v. Camacho , 36 A.D.3d 821, 822, 828 N.Y.S.2d 496 [2d Dept. 2007] ). Thus, in appeal Nos. 2 and 3, review is limited to the denial of the request of respondents’ attorneys for an adjournment (see Ramere D. , 177 A.D.3d at 1386-1387, 110 N.Y.S.3d 618 ).
"Whether to grant or deny an adjournment rests within the trial court's sound discretion, and such requests should be granted only upon a showing of good cause" ( Matter of Thompson v. Wood , 156 A.D.3d 1279, 1282, 68 N.Y.S.3d 199 [3d Dept. 2017] [internal quotation marks omitted]; see Matter of Tyler W. [Stacey S.] , 121 A.D.3d 1572, 1573, 994 N.Y.S.2d 217 [4th Dept. 2014] ; Matter of Shavira P. , 283 A.D.2d 1027, 1028, 723 N.Y.S.2d 919 [4th Dept. 2001], lv denied 97 N.Y.2d 605, 737 N.Y.S.2d 53, 762 N.E.2d 931 [2001] ). We reject respondents’ contention that Family Court abused its discretion in denying the request for an adjournment here inasmuch as counsel offered no "good cause" for the adjournment and instead offered only speculation as to why respondents might be absent. Moreover, that was not respondents’ first request for an adjournment; nor was it their first failure to appear for a scheduled hearing without explanation (cf. Matter of Cameron B. [Nicole C.] , 149 A.D.3d 1502, 1503, 52 N.Y.S.3d 774 [4th Dept. 2017] ).
In appeal Nos. 4 and 5, the mother contends that the court abused its discretion in not imposing a suspended judgment. Although the mother contends on appeal that a suspended judgment would have been in the best interests of Ny'Jeem and John Jr., she " ‘did not request a suspended judgment at the dispositional hearing and thus failed to preserve for our review [her] contention that the court erred in failing to grant that relief’ " ( Matter of Justin T. [Wanda T.—Joseph M.] , 154 A.D.3d 1338, 1339-1340, 61 N.Y.S.3d 788 [4th Dept. 2017], lv denied 30 N.Y.3d 910, 2018 WL 773142 [2018] ; see Matter of Dakota H. [Danielle F.] , 126 A.D.3d 1313, 1315, 5 N.Y.S.3d 742 [4th Dept. 2015], lv denied 25 N.Y.3d 909, 2015 WL 3605123 [2015] ). In any event, a suspended judgment was not warranted here inasmuch as "any progress made by [the mother] in the months preceding the dispositional determination was not sufficient to warrant any further prolongation of the [subject] child[ren]’s unsettled familial status" ( Matter of Burke H. [Richard H.] , 134 A.D.3d 1499, 1502, 23 N.Y.S.3d 776 [4th Dept. 2015] [internal quotation marks omitted]; see Matter of Donovan W. , 56 A.D.3d 1279, 1280, 868 N.Y.S.2d 451 [4th Dept. 2008], lv denied 11 N.Y.3d 716, 874 N.Y.S.2d 5, 902 N.E.2d 439 [2009] ).
With respect to appeal Nos. 1 and 6, as noted above, respondents each appealed from the respective orders in appeal Nos. 2 and 3 terminating their parental rights with respect to Syncere. Further, the mother did not appeal from an order terminating her parental rights with respect to Syre'nity and the time for appeal has now passed (see Family Ct Act § 1113 ; Matter of Liliana G. [Orena G.] , 91 A.D.3d 1325, 1326, 938 N.Y.S.2d 703 [4th Dept. 2012] ). Inasmuch as the orders terminating respondents’ parental rights to both those children are final, the disposition renders moot the appeals from the orders entered in the neglect proceedings (see generally Matter of Raychael L.W. , 298 A.D.2d 829, 829, 748 N.Y.S.2d 310 [4th Dept. 2002], lv denied 99 N.Y.2d 504, 754 N.Y.S.2d 203, 784 N.E.2d 76 [2002] ; Matter of Yusef M. , 276 A.D.2d 330, 330, 714 N.Y.S.2d 265 [1st Dept. 2000], lv dismissed 96 N.Y.2d 792, 725 N.Y.S.2d 641, 749 N.E.2d 210 [2001] ; Matter of Unborn Baby B. , 158 A.D.2d 455, 456, 550 N.Y.S.2d 912 [2d Dept. 1990] ; but see Matter of Keith C. , 226 A.D.2d 369, 370, 640 N.Y.S.2d 221 [2d Dept. 1996], lv denied 88 N.Y.2d 807, 647 N.Y.S.2d 164, 670 N.E.2d 448 [1996] ).