In re Daniel P., A Child Under the Age of Eighteen Years, etc., Noheme P., Respondent-Appellant, Administration for Children's Services, Petitioner-Respondent.
P., Nonparty Respondent.
J. Baer, New York, for appellant.
Georgia M. Pestana, Acting Corporation Counsel, New York
(Jonathan A. Popolow of counsel), for Administration for
Children's Services, respondent.
L. Kahn, New York, for David P., respondent.
Law Office of Steven P. Forbes, Jamaica (Steven P. Forbes of
counsel), attorney for the child.
Friedman, J.P., Webber, Singh, Moulton, JJ.
from order of disposition, Family Court, Bronx County
(Michael Milsap, J.), entered on or about May 3, 2018, which,
based upon a fact-finding determination that respondent
mother neglected the subject child, Daniel P., released the
child for 12 months into Administration of Children's
Services' (ACS) supervised custody of his nonrespondent
father, David P., unanimously dismissed, without costs, as
moot. Appeal from order of fact-finding, same court and
Judge, entered, on the mother's default, on or about
December 20, 2017, unanimously dismissed, without costs, as
taken from a nonappealable paper.
mother argues, for the first time on appeal, that Family
Court (and this Court, in its August 30, 2018 order granting
poor person relief) was incorrect to state the order of
fact-finding was issued on her default. Even were we to
consider this unpreserved argument (see Matter of Twania
B. v James A.B., 172 A.D.3d 643');">172 A.D.3d 643 [1st Dept 2019];
Matter of Toshea C.J., 62 A.D.3d 587');">62 A.D.3d 587 [1st Dept
2009]), we would reject it, as the record belies her
characterizations. She eventually appeared at the April 28,
2017 proceedings, but by the time she did so, records from
her treatment and evaluation at Lincoln Hospital, on which
the fact-finding order was heavily based, had already been
admitted into evidence. Counsel was not authorized to
participate in her absence and stated he would not
participate until she arrived (cf. Matter of Jahira N.D.
[Shaniqua S.S.], 111 A.D.3d 826');">111 A.D.3d 826 [2d Dept 2013];
Matter of Bradley M.M. [Michael M.- Cindy M.], 98
A.D.3d 1257 [4th Dept 2012]; Matter of Shemeco D.,
265 A.D.2d 860');">265 A.D.2d 860 [4th Dept 1999]).
mother was present at certain times, but not when most of the
evidence of her neglect was submitted to Family Court.
Moreover, when she was present, she did not seek to introduce
any evidence to rebut the evidence of neglect. Accordingly,
the fact-finding order was properly deemed to have issued on
the mother's default and, as such, is not an appealable
paper (Matter of George L. v Karen L., 172 A.D.3d
474 [1st Dept 2019]; Matter of Daleena T., 145
A.D.3d 628 [1st Dept 2016]).
were we to consider the mother's second, third and fourth
appellate points, addressed to the fact-finding order, we
would find she has not shown grounds to disturb the findings
the mother faults Family Court for granting a motion she
made: specifically, to relieve Bronx Defenders as her
counsel, it was she who, in the middle of fact-finding,
stated she no longer wanted Bronx Defenders as counsel. The
court suggested her decision was ill-timed and that, as she
herself notes, their representation of her was
"vigorous." Her arguments about the departure of
her second court-appointed counsel are also unavailing.
Again, she asked that he be relieved yet faults Family Court
for acting on her request. In any case, Family Court
immediately appointed her new counsel each time and, when her
third court-appointed attorney sought to be relieved because
she insisted that he commence frivolous proceedings, Family
Court resolved the impasse by dismissing the proceedings at
issue (which the mother had commenced pro se), then persuaded
counsel to stay on as her attorney.
record also belies the mother's claim to have been
wrongly deprived of the opportunity to cross-examine the ACS
caseworker. Notwithstanding disruptions caused by her own
tardy arrival and sudden request for new counsel, Family
Court was open to the possibility of reopening the
caseworker's testimony, and reasonably advised counsel to
first determine if cross-examination was necessary, and, if
so, to make an application explaining why the testimony
should be reopened. The court also presented the option that
counsel might call the caseworker as the mother's
witness. However, at some point counsel decided not to call
the caseworker to testify. This was his strategic decision,
not the result of prohibitions by Family Court that would
constitute denial of due process (cf. Matter of
Middlemiss v Pratt, 86 A.D.3d 658');">86 A.D.3d 658 [3d Dept 2011]).
were we to consider the mother's unpreserved argument
that nonrespondent father should not have been permitted to
participate in fact-finding, we would reject it. A
nonrespondent parent may participate in hearings to the
extent they affect temporary custody of the subject child
(see Family Ct Act § 1035[d]; Matter of
Kimberly RR. [Gloria RR.- Pedro RR.], 165 A.D.3d 1428');">165 A.D.3d 1428
[3d Dept 2018]).
the neglect findings were largely premised on the
mother's alcohol abuse did not deprive her of due
process. The petition alleges incidents of domestic violence,
aggressive and/or bizarre behavior that constituted neglect
on October 24, December 24, and December 29, 2016
€” which, moreover, is alleged to have been
behavior that led to her being hospitalized for treatment or
evaluation. The fact-finding order was based primarily upon
these incidents, and its findings of alcohol abuse were based
on hospital records of the moether's hospital treatment
and evaluation on these dates, i.e., events squarely
alleged in the petition. The petition thus gave adequate
notice of the specific dates at issue, while, at the same
time, alleged conduct on those dates in a manner broadly
enough to encompass the court's eventual findings
(cf. Matter of Vallery P.[Jondalla P.], 106 A.D.3d
575 [1st Dept 2013]; Matter of Blaize F., 50 A.D.3d
1182 [3d Dept ...