Alleged to Be Chemung Cnty. Dep't of Soc. Servs. v. Cassandra (In re MM)

177 A.D.3d 1119

113 N.Y.S.3d 372

In the MATTER OF COREY MM., Alleged to be a Permanently Neglected Child.

Chemung County Department of Social Services, Respondent;

v.Cassandra LL., Appellant, et al., Respondent.

527035

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 9, 2019

Decided and Entered: November 21, 2019

Lisa K. Miller, McGraw, for appellant.

Chemung County Department of Social Services, Elmira (Damian M. Sonsire of counsel), for Chemung County Department of Social Services, respondent.

Alena E. Van Tull, Binghamton, attorney for the child.

Before: Garry, P.J., Mulvey, Devine and Aarons, JJ.

MEMORANDUM AND ORDER

Garry, P.J. Appeal from an order of the Family Court of Chemung County (Baker, J.), entered January 12, 2018, which granted petitioner's application, in a proceeding pursuant to Social Services Law § 384–b, to adjudicate the subject child to be permanently neglected, and terminated respondent Cassandra LL.'s parental rights.

Respondent Cassandra LL. (hereinafter the mother) and respondent Corey NN. (hereinafter the father) are the parents of a child (born in 2014). The child was placed in petitioner's custody in 2015 at the age of 9½ months, due in part to the mother's substance abuse and domestic violence issues. The mother and the father consented to findings of neglect in 2016. In December 2016, Family Court issued a warrant for the mother's arrest after she failed to attend a scheduled appearance in the neglect proceeding. Petitioner then commenced this proceeding against the mother and the father seeking adjudications of permanent neglect and termination of their parental rights. In February 2017, the mother was returned on the warrant; an initial appearance was held in the permanent neglect proceeding, and the mother entered a general denial. She thereafter failed to attend an appearance in March 2017. She was present at the next appearance in May 2017, but again failed to appear in July 2017 for the scheduled trial.¹ The court denied counsel's request for adjournment, found the mother in default, and determined that she had permanently neglected the child. In August 2017, the mother appeared and testified at the dispositional hearing. The court thereafter terminated her parental rights. The mother appeals.

Initially, we find that the mother is precluded from raising claims in this appeal that arise from the adjudication of permanent neglect. Although an appeal from a dispositional order in a permanent neglect proceeding would ordinarily bring up the fact-finding order for review, no appeal lies from an order entered upon default (see CPLR 5511 ; Matter of Melijah NN. [Russell NN.], 150 A.D.3d 1348, 1349 n 2, 51 N.Y.S.3d 440 [2017] ; Matter of Adele T. [Kassandra T.], 143 A.D.3d 1202, 1203, 40 N.Y.S.3d 251 [2016] ). The appropriate procedure for such a challenge is "to move to vacate the default and, if necessary, appeal from the denial of that motion" ( Matter of Madison P. [Kaitlin R.], 151 A.D.3d 1300, 1302, 58 N.Y.S.3d 167 [2017] [internal quotation marks and citations omitted]; see Matter of Deshane v. Deshane, 123 A.D.3d 1243, 1244, 999 N.Y.S.2d 226 [2014], lv denied 25 N.Y.3d 901, 2015 WL 1422486 [2015] ). Here, the mother did not do so.

As the mother argues, " a party's failure to appear does not automatically result in a default – particularly where counsel appears upon the absent party's behalf and offers an explanation for his or her failure to attend" ( Matter of Derek P. v. Doris Q., 92 A.D.3d 1103, 1105, 939 N.Y.S.2d 151 [2012] [internal quotation marks and citations omitted], lv dismissed and denied, 19 N.Y.3d 831, 945 N.Y.S.2d 641, 968 N.E.2d 997 [2012] ). However, despite the presence of the mother's counsel at the March 2017 appearance, we find no error in Family Court's determination that the mother was in default. At the February 2017 appearance, petitioner's counsel stated that the mother had previously failed to attend four other appearances in the neglect proceeding, and that her most recent prior court appearance, in October 2016, had taken place pursuant to a warrant after a failure to appear. The mother received Parker admonishments at the February 2017 appearance, was specifically warned that she could be held in default if she did not attend future appearances, and confirmed her full understanding of this warning. She nevertheless failed to attend the next appearance in March 2017. On that occasion, the court accepted her counsel's explanation that the mother was in a drug treatment program in California and, instead of entering a default, accommodated the mother by setting the matter down for a conference and a May 2017 appearance for an account of her progress.

Having left the California program, the mother appeared with her counsel at the May 2017 appearance, where Family Court set the July 2017 trial date. Although the mother was thus fully aware of the trial date, she nevertheless elected to leave the state to re-enroll in the California program. She gave no advance notice of this plan so that a timely request for an adjournment could have been made; instead, she left last-minute voicemails for her counsel and petitioner's counsel on the weekend immediately before the trial, scheduled to commence on a Monday. In view of the mother's history of previous failures to appear, the Parker warnings she had received, the accommodation that the court had granted to her after her previous absence in March 2017, and her undisputed knowledge of the July 2017 trial date, we find that the default was properly entered. Thus, the mother may not challenge the permanent neglect determination (see Matter of Adele T. [Kassandra T.], 143 A.D.3d at 1203–1204, 40 N.Y.S.3d 251 ; Matter of Semonae YY., 239 A.D.2d 716, 716–717, 657 N.Y.S.2d 488 [1997] ; see also Matter of Deshane v. Deshane, 123 A.D.3d at 1244, 999 N.Y.S.2d 226 ).²

We reject the mother's contention that she was deprived of the effective assistance of counsel by her counsel's failure to move to vacate the default. Such a motion would have required counsel to demonstrate "a reasonable excuse for [the mother's] default and a potentially meritorious defense" ( Matter of Myasia QQ. [Mahalia QQ.], 133 A.D.3d 1055, 1056, 21 N.Y.S.3d 361 [2015] ; see CPLR 5015[a][1] ). Family Court had rejected the only excuse the mother provided for her absence, and nothing in the record indicates that counsel would have been able to establish these grounds. "[C]ounsel cannot be faulted for failing to make a motion that has little or no chance of success" ( Matter of Ritter v. Moll , 148 A.D.3d 1427, 1429, 50 N.Y.S.3d 183 [2017] [internal quotation marks and citations omitted]; see Matter of Donald G. v. Hope H., 160 A.D.3d 1061, 1065, 74 N.Y.S.3d 135 [2018] ). The mother's counsel attempted – albeit unsuccessfully – to forestall the default by requesting an adjournment for a telephonic appearance. When that effort failed, counsel could reasonably have made the strategic determination that a motion to vacate the default would be futile and that the procedure that would best protect the mother's interests would be to secure her attendance at future appearances. Our review of the record as a whole reveals that the mother's counsel advocated zealously and effectively for her throughout the proceedings and that she received meaningful representation (see Matter of Ritter v. Moll, 148 A.D.3d at 1430, 50 N.Y.S.3d 183 ; Matter of Shay–Nah FF. [Theresa GG.], 106 A.D.3d 1398, 1401–1402, 966 N.Y.S.2d 266 [2013], lv denied 21 N.Y.3d 863, 2013 WL 4562343 [2013] ).

Finally, Family Court did not err in denying the mother's request for a suspended judgment (see Family Ct. Act §§ 631[b] ; 633). "Following an adjudication of permanent neglect, the sole concern at a dispositional hearing is the best interests of the child and there is no presumption that any particular disposition, including the return of a child to a parent, promotes such interests" ( Matter of Angelica VV., 53 A.D.3d 732, 733, 861 N.Y.S.2d 187 [2008] [citations omitted]; accord Matter of Johanna M. [John L.], 103 A.D.3d 949, 951, 959 N.Y.S.2d 557 [2013], lv denied 21 N.Y.3d 855, 2013 WL 1876512 [2013] ). A suspended judgment may be granted when a court "finds that it would be in the child's best interests to give the parent a brief grace period in which to demonstrate his or her fitness to care for the child and improve parenting skills" ( Matter of Carter A. [Courtney QQ.], 121 A.D.3d 1217, 1220, 993 N.Y.S.2d 799 [2014] ). However, the remedy is appropriate only when "the parent, under the facts presented, has clearly demonstrated that [he or she] deserve[s] another opportunity to show that [he or she] ha[s] the ability to be a fit parent" ( Matter of Anastasia FF., 66 A.D.3d 1185, 1187, 888 N.Y.S.2d 624 [2009] [internal quotation marks and citations omitted], lv denied 13 N.Y.3d 716, 2010 WL 154796 [2010] ; accord Matter of Illion RR. [Rachael SS.], 154 A.D.3d 1126, 1128, 62 N.Y.S.3d 220 [2017], lv denied 30 N.Y.3d 908, 2018 WL 326639 [2018] ). We agree with the attorney for the child that the mother did not make that showing here.

At the dispositional hearing, petitioner's caseworker testified that a developmental-behavioral pediatrician had conducted an evaluation of the child's special medical, behavioral and emotional needs and had concluded...