Opinion
754 CAF 22-00511
12-22-2023
In the MATTER OF DAVID P.S. and James R.S. Steuben County Department of Social Services, Petitioner-Respondent; v. Grace C.L., Respondent-Appellant.
THOMAS L. PELYCH, HORNELL, FOR RESPONDENT-APPELLANT. MARY HOPE BENEDICT, BATH, ATTORNEY FOR THE CHILDREN.
THOMAS L. PELYCH, HORNELL, FOR RESPONDENT-APPELLANT.
MARY HOPE BENEDICT, BATH, ATTORNEY FOR THE CHILDREN.
PRESENT: WHALEN, P.J., CURRAN, BANNISTER, OGDEN, AND DELCONTE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal is unanimously dismissed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 10, respondent mother appeals from an amended order of fact-finding and disposition that, inter alia, adjudged the subject children to be neglected children. Initially, the mother did not appear at the fact-finding hearing and, although her attorney was present at the hearing, the attorney did not participate. Under the circumstances, we conclude that the mother's unexplained failure to appear constituted a default (see Matter of Malachi S. [Michael W.] , 195 A.D.3d 1445, 1446, 150 N.Y.S.3d 435 [4th Dept. 2021], lv dismissed 37 N.Y.3d 1081, 155 N.Y.S.3d 389, 177 N.E.3d 585 [2021] ). " ‘[I]t is well settled that no appeal lies from an order that is entered upon the default of the appealing party’ " ( Matter of Roache v. Hughes-Roache , 153 A.D.3d 1653, 1653, 61 N.Y.S.3d 411 [4th Dept. 2017] ; see Matter of Rottenberg v. Clarke , 144 A.D.3d 1627, 1627, 41 N.Y.S.3d 848 [4th Dept. 2016] ). Further, even assuming, arguendo, that the mother raised an issue that was contested below and is thus reviewable on this appeal despite her default (see Matter of Thomas B. [Calla B.] , 139 A.D.3d 1402, 1403, 31 N.Y.S.3d 381 [4th Dept. 2016] ), we take judicial notice of the entry of a subsequent order terminating the mother's parental rights with respect to the subject children and that the time for the mother to appeal from that order has now passed (see Family Ct Act § 1113 ; see Matter of John D., Jr. [John D.] , 199 A.D.3d 1412, 1414, 154 N.Y.S.3d 590 [4th Dept. 2021], lv denied 38 N.Y.3d 903, 2022 WL 1491244 [2022] ). Inasmuch as the order terminating the mother's parental rights to the subject children is final, the disposition renders moot the appeal from the order entered in the neglect proceedings (see John D., Jr. , 199 A.D.3d at 1414, 154 N.Y.S.3d 590 ).