| Matter of N. (Fania D.—Alice T.) |
| 2013 NY Slip Op 05079 [108 AD3d 551] |
| July 3, 2013 |
| Appellate Division, Second Department |
| In the Matter of N. Fania D., Appellant; Alice T. et al.,Respondents. |
—[*1] Erin K. Colgan, Staten Island, N.Y., attorney for the child.
In an adoption proceeding pursuant to Domestic Relations Law article 7, the motherappeals from an order of the Family Court, Richmond County (Wolff, J.), datedNovember 2, 2011, which, after a hearing, determined that her consent to the adoption ofthe subject child was not required pursuant to Domestic Relations Law § 111 (2)(a).
Ordered that the order is affirmed, without costs or disbursements.
The petitioners, who have been the legal guardians of the subject child since 2004,commenced this adoption proceeding in 2010. The biological mother appeared in FamilyCourt with her attorney on August 25, 2010, and September 13, 2011, and the courtordered an evidentiary hearing on the issue of whether the mother had abandoned thechild such that her consent to the adoption was not required (see DomesticRelations Law § 111 [2] [a]). The hearing commenced on the next court date,October 24, 2011. The mother appeared with her attorney, and the petitioner Alice T.testified. On the adjourned date for the continued hearing, November 2, 2011, the motherfailed to appear. The mother's attorney, who was unaware of the reason for the mother'sabsence and unable to provide an excuse, asked the court for an adjournment. TheFamily Court denied the request, noting that the mother had been present at the lasthearing date and had notice of the continued date and time. The hearing proceeded in themother's absence and, after further testimony, the court rendered a determination that themother's consent to the adoption was not required.
Contrary to Alice T.'s contention, the order appealed from was not rendered upon themother's default. The mother appeared at all court dates except the last one, and herattorney participated in the hearing on the final date by reviewing the evidence andobjecting to the proffered testimony (see Matter of Edward J. Mc. [Edward J. Mc.], 92 AD3d887 [2012]; Matter ofO'Leary v Frangomihalos, 89 AD3d 948 [2011]; Matter of Kindra B.,296 AD2d 456, 458 [2002]; Matter of Jennifer DD., 227 AD2d 675, 676[1996]). Accordingly, the mother may appeal from the order (see Matter of Edward J.Mc. [Edward J. Mc.], 92 AD3d at 887; Matter of O'Leary v Frangomihalos,89 AD3d at 949).[*2]
The granting of an adjournment for any purposerests in the sound discretion of the trial court (see Matter of Steven B., 6 NY3d 888, 889 [2006];Matter of O'Leary v Frangomihalos, 89 AD3d at 949; Matter of Kinara C. [JeromeC.], 89 AD3d 839, 841 [2011]), which must "undertake a balancedconsideration of all relevant factors" in exercising its discretion (Matter of Sicurella v Embro,31 AD3d 651, 651 [2006]; see Matter of Kinara C. [Jerome C.], 89AD3d at 841; Matter of Paulinov Camacho, 36 AD3d 821, 822 [2007]). In light of the mother's presence at thehearing on October 24, 2011, when her attorney cross-examined the petitioner Alice T.,the mother's actual knowledge of the date and time of the continued hearing, which isundisputed, and her failure to contact her attorney to advise him regarding her failure toappear on the final date of the hearing, the Family Court did not improvidently exerciseits discretion in denying the mother's attorney's request for an adjournment (cf. Matterof O'Leary v Frangomihalos, 89 AD3d at 949; Matter of Kinara C.[Jerome C.], 89 AD3d at 841; Matter of Nicholas S., 46 AD3d 830 [2007]).
The mother's remaining contention regarding the alleged denial of her right toeffective assistance of counsel is without merit. Angiolillo, J.P., Dickerson, Sgroi andHinds-Radix, JJ., concur.
Motion by the respondent Alice T., inter alia, to dismiss an appeal from an order ofthe Family Court, Richmond County, dated November 2, 2011, on the ground that noappeal lies from an order entered upon the default of the appealing party.
By decision and order on motion of this Court dated December 10, 2012, that branchof the motion which was to dismiss the appeal was held in abeyance and referred to thepanel of Justices hearing the appeal for determination upon the argument or submissionthereof.
Upon the papers filed in support of the motion and no papers having been filed inopposition or in relation thereto and upon the submission of the appeal, it is
Ordered that the branch of the motion which was to dismiss the appeal is denied.Angiolillo, J.P., Dickerson, Sgroi and Hinds-Radix, JJ., concur.