| Matter of Devon W. (Lavern D.) |
| 2015 NY Slip Op 03374 [127 AD3d 1098] |
| April 22, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Devon W. Administration forChildren's Services, Respondent; Lavern D., Appellant. (Proceeding No. 1.) In the Matterof Denzel D. Administration for Children's Services, Respondent; Lavern D., Appellant.(Proceeding No. 2.) In the Matter of Spencer D. Administration for Children's Services,Respondent; Lavern D., Appellant. (Proceeding No. 3.) |
Robert Marinelli, New York, N.Y., for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnensheinand Robert Bewkes of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Amy Hausknechtof counsel), for respondent.
Appeals from (1) an order of fact-finding of the Family Court, Queens County(Maria Arias, J.), dated July 20, 2012, and entered upon the mother's failure to appear ata fact-finding hearing, and (2) an order of disposition of that court dated October 16,2013. The order of fact-finding found that the mother had neglected the subject childrenDevon W. and Denzel D. The order of disposition placed those children in the custody ofthe Commissioner of Social Services of the City of New York.
Ordered that the appeals are dismissed, without costs or disbursements.
The appeal from the order of disposition, which placed the subject children in thecustody of the Commissioner of Social Services of the City of New York until thepermanency hearing scheduled for January 17, 2014, must be dismissed as academic, asthat portion of the order has expired by its own terms (see Matter of Alanie H., 83AD3d 1066, 1067 [2011]; Matter of Latifah C., [*2]34 AD3d 798 [2006]).
Generally, the dismissal of the appeal from the order of disposition would notpreclude review of an order of fact-finding (see Matter of Alexandria M. [Mattie M.], 108 AD3d 548,549 [2013]; Matter of Eddie J., 303 AD2d 587, 588 [2003]; Matter of ChaviS., 269 AD2d 454 [2000]). Here, however, the order of fact-finding was enteredupon the mother's failure to appear at the fact-finding hearing (see Matter ofAlexandria M. [Mattie M.], 108 AD3d at 549; Matter of Miguel M.-R.B., 36 AD3d 613, 613-614 [2007]).Although the mother's attorney appeared at the hearing, he did not actively represent themother by presenting proof, making objections, or conducting cross-examination on themother's behalf (see Matter of John Curtis H., 249 AD2d 928, 928 [1998];Matter of Ashlee X., 244 AD2d 707, 708 [1997]; Matter of SemonaeYY., 239 AD2d 716, 716-717 [1997]). The finding of neglect thus cannot bereviewed, since no appeal lies from an order entered upon the default of an appealingparty (see CPLR 5511; Matter of Alexandria M. [Mattie M.], 108 AD3dat 549; Matter of Eddie J., 303 AD2d at 588; Matter of Chavi S., 269AD2d at 454). Accordingly, the appeal from the order of fact-finding must also bedismissed. Skelos, J.P., Dillon, Austin and Hinds-Radix, JJ., concur.