| Matter of Atreyu G. (Jana M.) |
| 2012 NY Slip Op 00617 [91 AD3d 1342] |
| January 31, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of Atreyu G. and Another, Infants. Onondaga CountyDepartment of Social Services, Respondent; Jana M., Appellant, et al., Respondent. |
[*1]Appeal from an order of the Family Court, Onondaga County (Martha E. Mulroy, J.), enteredDecember 10, 2010 in a proceeding pursuant to Social Services Law . 384-b. The order, amongother things, terminated respondents' parental rights and transferred custody of the subjectchildren to petitioner.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: In this proceeding pursuant to Social Services Law . 384-b, respondentmother appeals from an order that, inter alia, terminated her parental rights with respect to thetwo subject children and ordered that they be freed for adoption. "An appeal from a dispositionalorder of Family Court brings up for review the propriety of a fact-finding order" (Matter of LisaE. [appeal No. 1], 207 AD2d 983 [1994]; see generally Matter of Jason S., 36 AD3d 618 [2007];Matter of Baby Boy C., 13 AD3d 619 [2004]). The mother contends that she was deniedprocedural due process because Family Court conducted a fact-finding hearing in her absence,while she was incarcerated. The mother has raised that contention for the first time on appeal,however, and thus has failed to preserve it for our review (see Matter of Derrick T.M., 286 AD2d938 [2001]; see generally Matter of Vanessa S., 20 AD3d 924 [2005]). In any event, " '[a]parent's right to be present for fact-finding and dispositional hearings in termination cases is notabsolute' " (Matter of Giovannie M.-V., 35 AD3d 1244, 1245 [2006]; see Matter of Eric L., 51AD3d 1400, 1401 [2008], lv denied 10 NY3d 716 [2008]). Here, the court initially adjourned thefact-finding hearing when the mother appeared without counsel, and the court re-appointed herprior attorney to represent her. The hearing was rescheduled for several weeks later, but themother failed to appear in court on the adjourned date. Although the mother's attorney appeared,he stated that he had no information regarding the mother's whereabouts, and that she had notmet with him to prepare for the hearing. In addition, the record reflects that the mother was awareof the proceeding, that she changed her place of residency frequently throughout the pendency ofthe proceeding, and that she refused [*2]to apprise petitioner or her attorney of her addresses prior tocourt appearances. Furthermore, although the mother stated that she had been "in jail until thatmorning," she made no attempt to contact the court or her attorney to seek an adjournment of thehearing, and her statement fails to establish that she was still in jail when the hearing took place.Thus, "[i]n light of the amount of time that the children had spent in foster care and the fact thatthe mother's attorney vigorously represented her interests at the [fact-finding] hearing, weconclude that the court did not abuse its discretion in conducting the hearing in her absence"(Matter of La'Derrick J.W. [Ashley W.], 85 AD3d 1600, 1602 [2011], lv denied 17 NY3d 709[2011]).
The mother did not request a suspended judgment and thus failed to preserve for ourreview her contention that the court should have granted that relief (see Matter of Rosalinda R.,16 AD3d 1063 [2005], lv denied 5 NY3d 702 [2005]). "Finally, the mother did not ask the courtto consider post-termination contact with the children in question or to conduct a hearing on thatissue, and we conclude in any event that she 'failed to establish that such contact would be in thebest interests of the children' " (Matter of Christopher J., 60 AD3d 1402, 1403 [2009]; see Matterof Andrea E. [Valerie E.], 72 AD3d 1617 [2010], lv denied 15 NY3d 703 [2010]). PresentScudder, P.J., Smith, Sconiers, Gorski and Martoche, JJ.