Opinion
01-06-2015
In re IYANA W., and Another, Children Under the Age of Eighteen Years, etc., Shamark W., Respondent–Appellant, Tonya B., Respondent, Administration for Children's Services, Petitioner–Respondent.
Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Scott Shorr of counsel), for Administration for Children's Services, respondent. Tamara A. Steckler, The Legal Aid Society, New York (Patricia Colella of counsel), attorney for the children.
Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Scott Shorr of counsel), for Administration for Children's Services, respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Patricia Colella of counsel), attorney for the children.
MAZZARELLI, J.P., DeGRASSE, MANZANET–DANIELS, FEINMAN, GISCHE, JJ.
Appeal from order of disposition, Family Court, Bronx County (Linda Tally, J.), entered on or about October 18, 2013, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about June 28, 2013, which found, after a hearing and inquest, that respondent Shamark W. had sexually abused his daughter and derivatively neglected her brother, unanimously dismissed, without costs, as taken from a nonappealable order. Appeal from orders of protection, same court and Judge, entered on or about October 18, 2013, unanimously dismissed, without costs, as abandoned.
The record shows that respondent failed to appear on the second date of the fact-finding hearing, and that the Family Court continued the hearing as an inquest. The Family Court properly deemed respondent to be in default, because his trial counsel did not state that she wished to proceed in his absence and was authorized to do so (see Matter of Jaquan Tieran B. [Latoya B.], 105 A.D.3d 498, 499, 963 N.Y.S.2d 190 [1st Dept.2013] ). An order entered upon default is not appealable (see id. ).
In any event, respondent failed to preserve his ineffective counsel claim (see Matter of Niyah E. [Edwin E.], 71 A.D.3d 532, 533, 896 N.Y.S.2d 352 [1st Dept.2010] ), and the argument is otherwise unavailing (see Matter of Lenea'jah F. [Makeba T.S.], 105 A.D.3d 514, 515, 963 N.Y.S.2d 105 [1st Dept.2013] ; see also Matter of Nikeerah S. [Barbara S.], 69 A.D.3d 421, 422, 893 N.Y.S.2d 27 [1st Dept.2010] ).