Jerry VV. v. Jessica WW.

186 A.D.3d 1799

130 N.Y.S.3d 556

In the Matter of JERRY VV., Respondent,

v.JESSICA WW., Appellant, et al., Respondent.

528421

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

Calendar Date: August 19, 2020

Decided and Entered: September 17, 2020

Matthew C. Hug, Albany, for appellant.

Alexander W. Bloomstein, Hillsdale, for respondent.

Michelle I. Rosien, Philmont, attorney for the child.

Before: Egan Jr., J.P., Clark, Mulvey, Devine and Pritzker, JJ.

MEMORANDUM AND ORDER

Mulvey, J. Appeal from an order of the Family Court of Greene County (Tailleur, J.), entered January 14, 2019, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, for custody of the subject child.

After respondent Jessica WW. (hereinafter the mother) was arrested for, among other things, violating probation, petitioner (hereinafter the father) filed a petition seeking custody of their child (born in 2007).¹ Family Court granted the father temporary custody of the child. At a November 2018 appearance, with the mother appearing by telephone, the court scheduled a December 2018 hearing. Before the hearing occurred, the mother was unsuccessfully discharged from a drug treatment program, she absconded and a warrant was issued for her arrest. At the December 2018 fact-finding hearing, the mother failed to appear, prompting her counsel to request an adjournment. Family Court denied the request and proceeded with the hearing. Thereafter, the court granted the father's petition, awarding him sole legal and physical custody of the child. The mother appeals.

"A party may not appeal from an order entered on default (see CPLR 5511 ), but a party's absence does not necessarily constitute a default, particularly where counsel appears upon the absent party's behalf[,] offers an explanation for his or her failure to attend" ( Matter of Linger v. Linger, 150 A.D.3d 1444, 1445, 55 N.Y.S.3d 760 [2017] [internal quotation marks and citations omitted]; see Matter of Kargoe v. Mitchell, 12 A.D.3d 978, 979, 785 N.Y.S.2d 557 [2004], lv dismissed 4 N.Y.3d 794, 795 N.Y.S.2d 169, 828 N.E.2d 85 [2005] ), "objects to a finding of default, and actively participates by cross-examining witnesses, offering proof or making motions or arguments" ( Matter of Myasia QQ. [Mahalia QQ.], 133 A.D.3d 1055, 1056, 21 N.Y.S.3d 361 [2015] ; see Matter of Daniels v. Davis, 140 A.D.3d 1688, 1688, 34 N.Y.S.3d 287 [2016] ; Matter of Cassandra M., 260 A.D.2d 961, 962, 689 N.Y.S.2d 279 [1999] ). The mother's counsel attended the fact-finding hearing. Although she offered a weak explanation for the mother's nonappearance, counsel objected to a default finding, unsuccessfully requested an adjournment and actively participated in the hearing by cross-examining the sole witness, objecting to the admission of documents and presenting a closing argument. Under the circumstances, we conclude that the order was not entered on default and is appealable (see Matter of Amanda I. v. Michael I., 185 A.D.3d 1252, 1253–1254, 128 N.Y.S.3d 300 [2020] ; Matter of Linger v. Linger, 150 A.D.3d at 1445, 55 N.Y.S.3d 760 ; Matter of O'Leary v. Frangomihalos, 89 A.D.3d 948, 949, 933 N.Y.S.2d 88 [2011] ; compare Matter of Corey MM. [Cassandra LL.], 177 A.D.3d 1119, 1120, 113 N.Y.S.3d 372–1121 [2019] ).

Family Court did not abuse its discretion in denying the adjournment sought by the mother's counsel. Family Court "may adjourn a fact-finding hearing ... for good cause shown," and such a determination is a matter resting within the court's sound discretion ( Family Ct Act § 626[a] ; see Matter of Thompson v. Wood, 156 A.D.3d 1279, 1282, 68 N.Y.S.3d 199 [2017] ; Matter of Dench–Layton v. Dench–Layton, 151 A.D.3d 1199, 1200, 56 N.Y.S.3d 598 [2017] ). The court had previously adjourned the matter, found the excuse for the mother's nonappearance suspect and knew that she was the subject of an outstanding arrest warrant. Without knowing when the mother would be taken into custody, the court could not reschedule the hearing for a date certain, rendering it difficult to establish permanency for the child. Accordingly, we find no abuse of discretion in the court's denial of the adjournment request (see Matter of Jack NN. [Sarah OO.], 173 A.D.3d 1499, 1500–1501, 105 N.Y.S.3d 146 [2019], lvs denied 34 N.Y.3d 904, 112 N.Y.S.3d 686, 698, 136 N.E.3d 419, 434 [2019] ; Matter of Jayden T. [Amy T.], 118 A.D.3d 1075, 1076, 987 N.Y.S.2d 645 [2014] ; see also Matter of Aida B. v. Alfredo C., 114 A.D.3d 1046, 1048, 980 N.Y.S.2d 601 [2014] ).

As for the merits, "[i]n an initial custody proceeding, Family Court's paramount consideration is to determine the custodial arrangement that would promote the best interests of the child" ( Matter of Damian R. v. Lydia S., 182 A.D.3d 650, 651, 122 N.Y.S.3d 395 [2020] ; see Matter of Amanda YY. v. Ramon ZZ., 167 A.D.3d 1260, 1261, 89 N.Y.S.3d 780 [2018] ). Considering that Family Court is in a superior position to evaluate testimony and assess credibility of witnesses, we accord great deference to the hearing court's custody determination and will not disturb it if supported by a sound and substantial basis in the record (see Matter of Damian R. v. Lydia S., 182 AD3d...