Matter of Kayla Emily W. (Atara W.)

Matter of Kayla Emily W. (Atara W.) 2009 NY Slip Op 08071 [67 AD3d 477] November 10, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

In the Matter of Kayla Emily W., a Child Alleged to be Permanently Neglected. Atara W., Appellant; Catholic Guardian Society and Home Bureau, Respondent.

—[*1] Steven N. Feinman, White Plains, for appellant.

Magovern & Sclafani, New York (Joanna M. Roberson of counsel), for respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Raymond E. Rogers of counsel), Law Guardian.

Order of disposition, Family Court, New York County (Sara P. Schechter, J.), entered on or about March 14, 2008, which terminated respondent's parental rights and awarded custody and guardianship of the child to the Commissioner of Social Services and petitioner child care agency for the purpose of adoption, unanimously affirmed, without costs. Appeal from order of fact-finding (same court and Judge), entered on or about February 5, 2008, which, upon respondent's default, determined that she had permanently neglected her daughter, unanimously dismissed, without costs, as taken from a nonappealable order.

Respondent's argument, that the petition did not adequately specify the agency's diligent efforts, is unpreserved, as she did not raise this argument below (see Matter of Toshea C.J., 62 AD3d 587 [2009]; Matter of Kimberly Vanessa J., 37 AD3d 185, 185 [2007]). In any event, we find the petition sufficient and that any alleged deficiency was cured by the introduction into evidence at the fact-finding hearing of the agency's case progress notes, which provided detail into the agency's efforts to reunite the child with respondent (see Matter of Gina Rachel L., 44 AD3d 367, 368 [2007]; Kimberly Vanessa J., 37 AD3d at 185). The case notes likewise support Family Court's finding that respondent failed to plan for her daughter's future, in that she failed to utilize rehabilitative services and material resources made available to her (see Social Services Law § 384-b [7] [c]; Matter of Justina Rose D., 28 AD3d 659, 660 [2006]; Matter of Tanya Alexis G., 273 AD2d 19, 19 [2000]). Family Court's finding that adoption was in the child's best interest is supported by a preponderance of the evidence (see Matter of Elizabeth Amanda T., 44 AD3d 507, 508 [2007]). [*2]

The appeal from the fact-finding order must be dismissed as no appeal lies from an order entered on default (see Matter of Kawari Claude C., 248 AD2d 158, 158 [1998]). Concur—Tom, J.P., Friedman, Nardelli, Buckley and Richter, JJ.