Opinion
2014-08-6
In the Matter of LUCINDA A. (Anonymous). Administration for Children's Services, respondent; Luba A. (Anonymous), appellant. (Proceeding No. 1). In the Matter of Manuel A. (Anonymous), respondent v. Luba A. (Anonymous), appellant. (Proceeding No. 2).
Richard L. Herzfeld, New York, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Dona B. Morris of counsel), for respondent in Proceeding No. 1.
Richard L. Herzfeld, New York, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Dona B. Morris of counsel), for respondent in Proceeding No. 1.
Thomas E. Wojtaszek, Brooklyn, N.Y., for respondent in Proceeding No. 2.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Claire V. Merkine of counsel), attorney for the child.
PETER B. SKELOS, J.P., L. PRISCILLA HALL, COLLEEN D. DUFFY, and BETSY BARROS, JJ.
In a child neglect proceeding pursuant to Family Court Act article 10 and a related custody and visitation proceeding pursuant to Family Court Act article 6, the mother appeals (1) from an order of disposition of the Family Court, Queens County (McGowan, J.), dated March 13, 2013, and entered in Proceeding No. 1, which, upon an order of fact-finding dated December 14, 2012, made after a hearing, finding that she neglected the subject child, and upon her failure to appear at the dispositional hearing, released the subject child to the custody of the father, with supervised visitation to her, and (2), as limited by her brief, from so much of a final order of custody of the same court dated March 13, 2013, and entered in Proceeding No. 2, as, upon her failure to appear at the hearing to determine the best interests of the child, awarded the father custody of the subject child.
ORDERED on the Court's own motion, the notice of appeal dated April 10, 2013, is deemed to be a notice of appeal from the order of disposition and the final order of custody ( seeCPLR 5520[c] ), and it is further,
ORDERED that the appeals are dismissed, without costs or disbursements, except insofar as they bring up for review the finding that the mother neglected the subject child and the denial of the mother's application for an adjournment of the combined dispositional hearing and hearing to determine the best interests of the child ( see Matter of Duane S., Jr. [Duane S.], 88 A.D.3d 727, 930 N.Y.S.2d 474); and it is further,
ORDERED that the orders are affirmed insofar as reviewed, without costs or disbursements.
Where, as here, the orders appealed from were made upon the appellant's default, “review is limited to matters which were the subject of contest below” ( Brown v. Data Communications, 236 A.D.2d 499, 499, 653 N.Y.S.2d 693;see James v. Powell, 19 N.Y.2d 249, 256 n. 3, 279 N.Y.S.2d 10, 225 N.E.2d 741;Matter of Constance P. v. Avraam G., 27 A.D.3d 754, 755, 813 N.Y.S.2d 463). Accordingly, on these appeals, review is limited to the finding that the mother neglected the subject child and the denial of the mother's application for an adjournment, which was made by her attorney ( see Matter of Paulino v. Camacho, 36 A.D.3d 821, 822, 828 N.Y.S.2d 496;Tun v. Aw, 10 A.D.3d 651, 651–652, 782 N.Y.S.2d 96;Brown v. Data Communications, 236 A.D.2d at 499, 653 N.Y.S.2d 693;see also Matter of Willie Ray B. [Deanna W.B.], 77 A.D.3d 657, 657–658, 908 N.Y.S.2d 371;Matter of Amber Megan D., 54 A.D.3d 338, 338–339, 862 N.Y.S.2d 568).
“The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court” (Matter of Anthony M., 63 N.Y.2d 270, 283, 481 N.Y.S.2d 675, 471 N.E.2d 447;see Matter of Steven B., 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646;Matter of Paulino v. Camacho, 36 A.D.3d at 822, 828 N.Y.S.2d 496). “In making such a determination, the court must undertake a balanced consideration of all relevant factors” (Matter of Sicurella v. Embro, 31 A.D.3d 651, 651, 819 N.Y.S.2d 75;see Matter of Paulino v. Camacho, 36 A.D.3d at 822, 828 N.Y.S.2d 496).
Here, in light of the failure of the mother's attorney to offer any explanation for her absence at the combined dispositional hearing and hearing to determine the best interests of the child, the Family Court providently exercised its discretion in denying the application for an adjournment ( see Matter of Kinara C. [Jerome C.], 89 A.D.3d 839, 841, 932 N.Y.S.2d 169;Matter of Willie Ray B. [Deanna W.B.], 77 A.D.3d at 658, 908 N.Y.S.2d 371;Matter of Amber Megan D., 54 A.D.3d at 338, 862 N.Y.S.2d 568;Matter of Paulino v. Camacho, 36 A.D.3d at 822, 828 N.Y.S.2d 496;Tun v. Aw, 10 A.D.3d at 651–652, 782 N.Y.S.2d 96;Brown v. Data Communications, 236 A.D.2d at 499, 653 N.Y.S.2d 693).
The mother's challenge to the Family Court's denial of her motion to vacate her default is not properly before this Court because the mother did not appeal from the order denying that motion ( seeFamily Ct. Act § 1113; Matter of Mark P. v. Jamie Q., 64 A.D.3d 921, 881 N.Y.S.2d 731;Matter of Sanders v. Slater, 53 A.D.3d 716, 861 N.Y.S.2d 461).
While the credible testimony before the Family Court did not support a finding that the mother neglected the child by failing to provide adequate shelter ( cf. Matter of Baby Girl E., 306 A.D.2d 343, 760 N.Y.S.2d 542;Matter of Michael W., 123 A.D.2d 874, 507 N.Y.S.2d 655), the Family Court's findings that the mother subjected the child to emotional neglect ( see Matter of Regina HH. [Lenore HH.], 79 A.D.3d 1205, 912 N.Y.S.2d 724) and medical neglect ( see Matter of Deanna R.G. [Raj Kumave B.], 83 A.D.3d 1064, 921 N.Y.S.2d 557), are supported by a preponderance of the credible evidence.
The mother failed to preserve for appellate review her challenge to the Family Court's active participation at the fact-finding hearing by failing to timely object to the court's conduct ( see Matter of Keaghn Y. [Heaven Z.], 84 A.D.3d 1478, 921 N.Y.S.2d 737;Matter of Borggreen v. Borggreen, 13 A.D.3d 756, 785 N.Y.S.2d 792). In any event, the court properly confined its participation at the fact-finding hearing to the clarification of confusing issues and testimony ( see Matter of Kyle FF., 85 A.D.3d 1463, 926 N.Y.S.2d 196;see also People v. Arnold, 98 N.Y.2d 63, 67, 745 N.Y.S.2d 782, 772 N.E.2d 1140).
The mother's remaining contention is without merit.