| Matter of Myasia QQ. (Mahalia QQ.) |
| 2015 NY Slip Op 08478 [133 AD3d 1055] |
| November 19, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Myasia QQ., a Child Alleged to bePermanentlyNeglected. Albany County Department for Children, Youth and Families,Respondent; Mahalia QQ., Appellant. |
Bruce Evans Knoll, Albany, for appellant.
James J. Green, Albany County Department for Children, Youth and Families,Albany, for respondent.
Tracey A. Brown, Delmar, attorney for the child.
Rose, J. Appeal from an order of the Family Court of Albany County (Walsh, J.),entered April 21, 2014, which granted petitioner's application, in a proceeding pursuantto Social Services Law § 384-b, to adjudicate Myasia QQ. to be apermanently neglected child, and terminated respondent's parental rights.
Respondent is the mother of Myasia QQ. (born in 2011). The child has resided withher paternal aunt since December 2011 pursuant to Family Court orders, and respondentthereafter admitted to neglecting her. In October 2013, petitioner filed a permanentneglect petition seeking to terminate respondent's parental rights. Respondent appeared atthe first two court appearances on the petition, but did not appear at the scheduled trialdate on January 24, 2014. Respondent's counsel indicated that her attempts to contactrespondent that morning had been unsuccessful, and she had no explanation for herabsence. Family Court thereafter granted petitioner's motion, supported by the attorneyfor the child, for a default order on permanent neglect. After an inquest at whichpetitioner's caseworker testified, the court terminated respondent's parental rights andplaced the [*2]child in the custody ofpetitioner.[FN*]Respondent now appeals.
We are unpersuaded by respondent's contention that Family Court erred in findingthat she had defaulted on the permanent neglect petition by not appearing on thescheduled trial date. "To be sure, a respondent's failure to appear at a fact-finding ordispositional hearing does not automatically result in a default," as where counselappears, explains a client's absence, objects to a finding of default, and activelyparticipates by cross-examining witnesses, offering proof or making motions orarguments (Matter of Semonae YY., 239 AD2d 716, 716 [1997]; see Matter of N. [Fania D.-AliceT.], 108 AD3d 551, 552 [2013]; Matter of Corey UU. [Donna UU.], 85 AD3d 1255, 1256 n1 [2011], lv denied 17 NY3d 708 [2011]). Here, despite being notified of thescheduled trial date, respondent did not appear and no excuse or explanation wasprovided for her absence. Contrary to her claim, she was not denied the opportunity toparticipate in the hearing (cf.Matter of Sonara HH. [Robert HH.], 128 AD3d 1122, 1123-1124 [2015], lvsdismissed 25 NY3d 1220, 1221 [2015]). Moreover, while her counsel appeared, shedid not explain respondent's absence and took no part in the proceedings, expresslydeclining to take a position in order to preserve respondent's "right to reopen the default."Thus, Family Court properly concluded that, notwithstanding the appearance of counselon her behalf, respondent defaulted on the petition (see Matter of Devon W. [Lavern D.], 127 AD3d 1098,1099 [2015]; Matter of Deshanev Deshane, 123 AD3d 1243, 1244 [2014], lv denied 25 NY3d 901[2015]; Matter of Naomi KK. vNatasha LL., 80 AD3d 834, 835 [2011], lv denied 16 NY3d 711[2011]).
Moreover, no appeal is permitted from an order entered upon a default (seeCPLR 5511; Matter of Scott vJenkins, 62 AD3d 1053, 1054 [2009], lv denied 13 NY3d 705 [2009]).The proper procedure was for respondent to move to vacate the default order andestablish a reasonable excuse for her default and a potentially meritorious defense(see CPLR 5015 [a] [1]) and, if the motion were denied, to appeal from suchdenial (see Matter of Deshane v Deshane, 123 AD3d at 1244; Matter of Scott KK. v PatriciaLL., 110 AD3d 1260, 1261 [2013], lv dismissed and denied 22 NY3d1054 [2014]; Matter of Naomi KK. v Natasha LL., 80 AD3d at 835). Thus,Family Court's entry of a default order was proper and the appeal therefrom must bedismissed.
McCarthy, J.P., Devine and Clark, JJ., concur. Ordered that the appeal is dismissed,without costs.
Footnote *:The child's father wasincarcerated and did not appear on the scheduled trial date, but later appeared by phoneand consented to the award of custody of the child to his aunt.