| Matter of Lucinda A. (Luba A.) |
| 2014 NY Slip Op 05639 [120 AD3d 492] |
| August 6, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Lucinda A. Administration forChildren's Services, Respondent; Luba A., Appellant. (Proceeding No. 1.) In the Matterof Manuel A., Respondent, v Luba A., Appellant. (Proceeding No.2.) |
Richard L. Herzfeld, New York, N.Y., for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgowand 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. Merkineof counsel), attorney for the child.
In a child neglect proceeding pursuant to Family Court Act article 10 and a relatedcustody and visitation proceeding pursuant to Family Court Act article 6, the motherappeals (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 offact-finding dated December 14, 2012, made after a hearing, finding that she neglectedthe subject child, and upon her failure to appear at the dispositional hearing, released thesubject child to the custody of the father, with supervised visitation to her, and (2), aslimited by her brief, from so much of a final order of custody of the same court datedMarch 13, 2013, and entered in proceeding No. 2, as, upon her failure to appear at thehearing to determine the best interests of the child, awarded the father custody of thesubject child.
Ordered on the Court's own motion, the notice of appeal dated April 10, 2013, isdeemed to be a notice of appeal from the order of disposition and the final order ofcustody (see CPLR 5520 [c]), and it is further,
Ordered that the appeals are dismissed, without costs or disbursements, exceptinsofar as they bring up for review the finding that the mother neglected the subject childand the denial of the mother's application for an adjournment of the combineddispositional hearing and hearing to determine the best interests of the child (seeMatter of Duane S., Jr. [Duane S.], 88 AD3d [*2]727[2011]); and it is further,
Ordered that the orders are affirmed insofar as reviewed, without costs ordisbursements.
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 DataCommunications, 236 AD2d 499, 499 [1997]; see James v Powell, 19 NY2d249, 256 n 3 [1967]; Matter ofConstance P. v Avraam G., 27 AD3d 754, 755 [2006]). Accordingly, on theseappeals, review is limited to the finding that the mother neglected the subject child andthe denial of the mother's application for an adjournment, which was made by herattorney (see Matter of Paulinov Camacho, 36 AD3d 821, 822 [2007]; Tun v Aw, 10 AD3d 651, 651-652 [2004]; Brown vData Communications, 236 AD2d at 499; see also Matter of Willie Ray B. [Deanna W.B.], 77 AD3d657, 657-658 [2010]; Matter of Amber Megan D., 54 AD3d 338, 338-339[2008]).
"The granting of an adjournment for any purpose is a matter resting within the sounddiscretion of the trial court" (Matter of Anthony M., 63 NY2d 270, 283 [1984];see Matter of Steven B., 6NY3d 888, 889 [2006]; Matter of Paulino v Camacho, 36 AD3d at 822). "Inmaking such a determination, the court must undertake a balanced consideration of allrelevant factors" (Matter ofSicurella v Embro, 31 AD3d 651, 651 [2006]; see Matter of Paulino vCamacho, 36 AD3d at 822).
Here, in light of the failure of the mother's attorney to offer any explanation for herabsence at the combined dispositional hearing and hearing to determine the best interestsof the child, the Family Court providently exercised its discretion in denying theapplication for an adjournment (see Matter of Kinara C. [Jerome C.], 89 AD3d 839, 841[2011]; Matter of Willie Ray B. [Deanna W.B.], 77 AD3d at 658; Matter ofAmber Megan D., 54 AD3d at 338; Matter of Paulino v Camacho, 36 AD3dat 822; Tun v Aw, 10 AD3d at 651-652; Brown v Data Communications,236 AD2d at 499).
The mother's challenge to the Family Court's denial of her motion to vacate herdefault is not properly before this Court because the mother did not appeal from the orderdenying that motion (see Family Ct Act § 1113; Matter of Mark P. v Jamie Q.,64 AD3d 921 [2009]; Matter of Sanders v Slater, 53 AD3d 716 [2008]).
While the credible testimony before the Family Court did not support a finding thatthe mother neglected the child by failing to provide adequate shelter (cf. Matter ofBaby Girl E., 306 AD2d 343 [2003]; Matter of Michael W., 123 AD2d 874[1986]), the Family Court's findings that the mother subjected the child to emotionalneglect (see Matter of ReginaHH. [Lenore HH.], 79 AD3d 1205 [2010]) and medical neglect (see Matter of Deanna R.G.[Rajkumare B.], 83 AD3d 1064 [2011]), are supported by a preponderance ofthe credible evidence.
The mother failed to preserve for appellate review her challenge to the FamilyCourt's active participation at the fact-finding hearing by failing to timely object to thecourt's conduct (see Matter ofKeaghn Y. [Heaven Z.], 84 AD3d 1478 [2011]; Matter of Borggreen vBorggreen, 13 AD3d 756 [2004]). In any event, the court properly confined itsparticipation at the fact-finding hearing to the clarification of confusing issues andtestimony (see Matter of KyleFF., 85 AD3d 1463 [2011]; see also People v Arnold, 98 NY2d 63, 67[2002]).
The mother's remaining contention is without merit. Skelos, J.P., Hall, Duffy andBarros, JJ., concur.