Opinion
579 CAF 21-00860
07-08-2022
In the MATTER OF JIRYAN S. Onondaga County Department of Children and Family Services, Petitioner-Respondent; v. Tammy (Also Known as Tamara) D., and Jason S., Respondents-Appellants.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT-APPELLANT JASON S. LAW OFFICE OF VERONICA REED, SCHENECTADY (VERONICA REED OF COUNSEL), FOR RESPONDENT-APPELLANT TAMMY (ALSO KNOWN AS TAMARA) D. ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (ERIN WELCH FAIR OF COUNSEL), FOR PETITIONER-RESPONDENT. ELIZABETH SCHENCK, SYRACUSE, ATTORNEY FOR THE CHILD.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT-APPELLANT JASON S.
LAW OFFICE OF VERONICA REED, SCHENECTADY (VERONICA REED OF COUNSEL), FOR RESPONDENT-APPELLANT TAMMY (ALSO KNOWN AS TAMARA) D.
ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (ERIN WELCH FAIR OF COUNSEL), FOR PETITIONER-RESPONDENT.
ELIZABETH SCHENCK, SYRACUSE, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating those parts finding that respondent Tammy (also known as Tamara) D. permanently neglected the subject child and terminating her parental rights and as modified the order is affirmed without costs and the matter is remitted to Family Court, Onondaga County, for further proceedings in accordance with the following memorandum: In this proceeding pursuant to Social Services Law § 384-b, respondent mother and respondent father each appeal from an order entered upon their respective defaults that, inter alia, determined that the subject child had been permanently neglected and terminated their parental rights with respect to that child. The mother and the father each failed to appear at the fact-finding hearing on the petition to terminate their parental rights and, although their attorneys were present at the hearing, neither attorney participated. Each parent's failure to appear constituted a default (see Matter of Hayden A. [Karen A.] , 188 A.D.3d 1759, 1759, 132 N.Y.S.3d 914 [4th Dept. 2020] ; Matter of Lastanzea L. [Lakesha L.] , 87 A.D.3d 1356, 1356, 929 N.Y.S.2d 922 [4th Dept. 2011], lv dismissed in part and denied in part 18 N.Y.3d 854, 938 N.Y.S.2d 844, 962 N.E.2d 267 [2011] ), and this Court previously granted petitioner's motion to dismiss the appeals except insofar as the mother or the father raised any issue that was subject to contest in the proceedings in Family Court ( Matter of Jiryan S. , 2021 N.Y. Slip Op. 74536[U], 2021 WL 5318258 [4th Dept. 2021] ; see generally Hayden A. , 188 A.D.3d at 1759, 132 N.Y.S.3d 914 ; Matter of Heavenly A. [Michael P.] , 173 A.D.3d 1621, 1622, 105 N.Y.S.3d 227 [4th Dept. 2019] ), i.e., the court's denial of the attorneys’ requests for an adjournment (see Hayden A. , 188 A.D.3d at 1759, 132 N.Y.S.3d 914 ; Matter of Ramere D. [Biesha D.] , 177 A.D.3d 1386, 1386-1387, 110 N.Y.S.3d 618 [4th Dept. 2019], lv denied 35 N.Y.3d 904, 2020 WL 2203889 [2020] ).
We reject the father's contention that the court abused its discretion in denying his attorney's request for an adjournment (see Matter of Ferratella v. Thomas , 173 A.D.3d 1834, 1835, 105 N.Y.S.3d 664 [4th Dept. 2019] ; Matter of Daniel K.L. [Shaquanna L.] , 138 A.D.3d 743, 745, 29 N.Y.S.3d 436 [2d Dept. 2016] ; Matter of Wilson v. McCray , 125 A.D.3d 1512, 1513, 3 N.Y.S.3d 555 [4th Dept. 2015], lv denied 25 N.Y.3d 908, 2015 WL 2237599 [2015] ). The father's contention that he was constructively denied counsel is not properly before us (see Matter of Nevaeh D.J. [Daniel J.–Janelle J.] , 151 A.D.3d 1867, 1868, 54 N.Y.S.3d 268 [4th Dept. 2017] ).
We agree with the mother that the court abused its discretion in denying her attorney's request for an adjournment. The mother had not previously requested an adjournment, and there was no indication in the record that an adjournment would have adversely affected the child (see Hayden A. , 188 A.D.3d at 1760, 132 N.Y.S.3d 914 ; Matter of Cameron B. [Nicole C.] , 149 A.D.3d 1502, 1503, 52 N.Y.S.3d 774 [4th Dept. 2017] ). Further, the mother was experiencing COVID-like symptoms and, under the court's own rules, she was prohibited from entering the courthouse (cf. Ramere D. , 177 A.D.3d at 1387, 110 N.Y.S.3d 618 ). We therefore vacate those parts of the order determining that the mother permanently neglected the subject child and terminating her parental rights, and we remit the matter to Family Court for further proceedings on the petition against the mother.