Josaph M. Monroe Cnty. Dep't of Human Servs. v. Wanda A.

221 A.D.3d 1458

200 N.Y.S.3d 844

In the MATTER OF JOSAPH M.

Monroe County Department of Human Services, Petitioner-Respondent;

v.Wanda A., Respondent-Appellant. (Appeal No. 3.)

693

CAF 22-00406

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

Entered: November 17, 2023

JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR RESPONDENT-APPELLANT.

JOHN P. BRINGEWATT, COUNTY ATTORNEY, ROCHESTER (ELIZABETH deV. MOELLER OF COUNSEL), FOR PETITIONER-RESPONDENT.

MAUREEN N. POLEN, ROCHESTER, ATTORNEY FOR THE CHILD.

PRESENT: SMITH, J.P., MONTOUR, GREENWOOD, NOWAK, AND DELCONTE, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that said appeal is unanimously dismissed except insofar as respondent Wanda A. claims that she received ineffective assistance of counsel during the hearing to determine whether to reappoint a guardian ad litem, and the order is affirmed without costs.

Memorandum: In this proceeding pursuant to Family Court Act article 10, respondent appeals in appeal No. 1 from an order that appointed a guardian ad litem for her pursuant to CPLR 1202. In appeal No. 2, respondent appeals from an order granting petitioner's application for a subpoena duces tecum with respect to respondent's medical and mental health treatment records. In appeal No. 3, respondent appeals from an order of fact-finding and disposition that, inter alia, adjudged the subject child to be neglected.

As a preliminary matter, we note that, shortly after issuing the order in appeal No. 1, Family Court terminated the representation by the guardian ad litem, and we therefore dismiss the appeal from the order in appeal No. 1 as moot (see Chase Natl. Bank of City of N.Y. v. von Kageneck , 260 App. Div. 941, 941, 23 N.Y.S.2d 450 [2d Dept. 1940] ; cf. Matter of Elliot Z. [Joseph Z.] , 165 A.D.3d 682, 683, 85 N.Y.S.3d 101 [2d Dept. 2018] ; see generally Matter of Wellman v. Surles , 185 A.D.2d 464, 465, 586 N.Y.S.2d 341 [3d Dept. 1992] ).

We further note that respondent does not raise any issues with respect to the order in appeal No. 2 and has therefore abandoned any contentions with respect thereto (see Matter of Michael S. [Rebecca S.] , 165 A.D.3d 1633, 1634, 82 N.Y.S.3d 916 [4th Dept. 2018], lv denied 32 N.Y.3d 915, 98 N.Y.S.3d 767, 122 N.E.3d 565 [2019]; Matter of Jaquish v. Town Bd. of Town of German Flatts , 160 A.D.3d 1372, 1372-1373, 76 N.Y.S.3d 678 [4th Dept. 2018] ; Abasciano v. Dandrea , 83 A.D.3d 1542, 1545, 924 N.Y.S.2d 696 [4th Dept. 2011] ). We thus dismiss the appeal from the order in appeal No. 2.

Contrary to respondent's contention in appeal No. 3, because she failed to appear at the fact-finding hearing and because her attorney, although present, did not participate in the hearing, the order of fact-finding and disposition was entered upon respondent's default (see Matter of Heavenly A. [Michael P.] , 173 A.D.3d 1621, 1622, 105 N.Y.S.3d 227 [4th Dept. 2019] ; Matter of Shawn A. [Milisa C.B.] , 85 A.D.3d 1598, 1598-1599, 924 N.Y.S.2d 902 [4th Dept. 2011], lv denied 17 N.Y.3d 713, 2011 WL 4916617 [2011] ). No appeal lies from an order entered upon the default of the appealing party (see CPLR 5511 ; Matter of Rottenberg v. Clarke , 144 A.D.3d 1627, 1627, 41 N.Y.S.3d 848 [4th Dept. 2016] ). Nevertheless, respondent's appeal from the order brings up for review "matters which were the subject of contest" before the court ( James v. Powell , 19 N.Y.2d 249, 256 n. 3, 279 N.Y.S.2d 10, 225 N.E.2d 741 [1967], rearg denied 19 N.Y.2d 862, 280 N.Y.S.2d 1025, 227 N.E.2d 408 [1967] ), i.e., respondent's claim that she was denied effective assistance of counsel at the hearing to determine whether to reappoint a guardian ad litem (see generally Matter of Buljeta v. Fuchs , 209 A.D.3d 730, 732, 176 N.Y.S.3d 130 [2d Dept. 2022] ; Matter of DiNunzio v. Zylinski , 175 A.D.3d 1079, 1080-1081, 108 N.Y.S.3d 634 [4th Dept. 2019] ).

Respondent contends that she was denied effective assistance of counsel based on counsel's statements to the court at that hearing that counsel was unable to communicate with respondent and that respondent was not cooperating with her. We reject that contention. "[C]ourts cannot shut their eyes to the special need of protection of a litigant actually incompetent but not yet judicially declared such. There is a duty on the courts to protect such litigants" ( Matter of Jesten J.F. [Ruth P.S.] , 167 A.D.3d 1527, 1528, 89 N.Y.S.3d 815 [4th Dept. 2018] [internal quotation marks omitted]). Thus, the court, on its own initiative or upon the motion of "any other party to the action," may appoint a guardian ad litem ( CPLR 1202 [a] [3] ) to appear on behalf of "an adult incapable of adequately prosecuting or defending [their] rights" ( CPLR 1201 ). When an attorney becomes "aware of their client's apparent incompetence, it [is] incumbent upon ... counsel to move, pursuant to CPLR 1202 (a) (3), for appointment of a guardian ad litem to protect [their client's] interests" ( Brewster v. John Hancock Mut. Life Ins. Co. , 280 A.D.2d 300, 300, 720 N.Y.S.2d 462 [1st Dept. 2001] ; see e.g. Jesten J.F. , 167 A.D.3d at 1528, 89 N.Y.S.3d 815 ; Matter of Anastasia E.M. [Niasia F.] , 146 A.D.3d 887, 888, 45 N.Y.S.3d 199 [2d Dept. 2017] ). Inasmuch as counsel's comments were relevant to the court's determination whether to appoint a guardian ad litem, we conclude that respondent failed to demonstrate the absence of a strategic or other...