| Matter of Naomi KK. v Natasha LL. |
| 2011 NY Slip Op 00068 [80 AD3d 834] |
| January 6, 2011 |
| Appellate Division, Third Department |
| In the Matter of Naomi KK., Respondent, v Natasha LL.,Appellant, et al., Respondent. |
—[*1] Maureen C. McGaw, Canton, attorney for the child. David D. Willer, St. Lawrence County Department of Social Services, Canton.
Stein, J. Appeal from an order of the Family Court of St. Lawrence County (Potter, J.),entered March 5, 2010, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 6, for custody of respondents' child.
Respondent Natasha LL. (hereinafter respondent) is the mother of Ryan LL. (born 2008).Petitioner—respondent's maternal aunt—commenced this proceeding for custody ofthe child, who had been placed with petitioner in September 2009 after an abuse petition wasfiled against respondent. In November 2009, respondent, represented by counsel, appeared beforeFamily Court in a proceeding relating to the abuse petition, the custody petition and other relatedmatters. The court subsequently found the child to have been derivatively abused andderivatively severely abused by respondent based upon findings that she had neglected, abusedand severely abused the child's half brothers. Trial of the instant proceeding was initiallyscheduled for December 2009 and, when respondent appeared with counsel at a court appearanceat that time, she was provided with a copy of the custody petition and a pretrial conference wasscheduled for March 2010. Respondent was thereafter notified in writing that, among otherthings, her unexcused absence from any scheduled court proceedings in the matter wouldconstitute a waiver of her right to be present and could result in the court proceeding to an [*2]inquest and an order disposing of the matter being entered withoutfurther notice. Respondent's counsel appeared at the March 2010 conference, but respondent didnot. No reason was provided for respondent's absence and her counsel affirmatively chose toremain silent during the ensuing inquest. Family Court then entered an order on default grantingcustody to petitioner based upon its determination that extraordinary circumstances existed andthat placement with petitioner was in the child's best interest. Respondent now appeals.
An appeal is not permitted from an order entered on default (see CPLR 5511), theproper procedure being to move to vacate the default order and, if denied, to appeal from suchdenial (see Matter of Scott vJenkins, 62 AD3d 1053, 1054 [2009], lv denied 13 NY3d 705 [2009]; Matter of Hill v Hillenbrand, 12 AD3d980, 981 [2004], lv denied 4 NY3d 705 [2005]). Here, respondent did not appear atthe pretrial conference—despite being notified of the date and of the consequences offailing to appear—and no explanation for respondent's absence was provided. Moreover,respondent's counsel did not participate in the proceedings and made no motions on respondent'sbehalf. While respondent's failure to appear does not automatically result in a default (seeMatter of Semonae YY., 239 AD2d 716, 716 [1997]), under these circumstances, entry ofdefault was proper and the appeal must be dismissed (see Matter of Scott v Jenkins, 62AD3d at 1054; Matter of Semonae YY., 239 AD2d at 717; compare Matter ofJennifer DD., 227 AD2d 675, 676 [1996]).
We have considered respondent's remaining contentions and, to the extent they are properlybefore us, find them to be without merit.
Cardona, P.J., Mercure, Malone Jr. and Garry, JJ., concur. Ordered that the appeal isdismissed, without costs.