Matter of Rosalyn YY. v Otsego County Dept. of Social Servs.

Matter of Rosalyn YY. v Otsego County Dept. of Social Servs. 2012 NY Slip Op 08841 Decided on December 20, 2012 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: December 20, 2012
513279

[*1]In the Matter of ROSALYN YY., Respondent,

v

OTSEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent, and DAVID XX., Appellant, et al., Respondent.

Calendar Date: November 20, 2012
Before: Peters, P.J., Rose, Lahtinen, Malone Jr. and Garry, JJ.


Monica V. Carrascoso, Cooperstown, for appellant.
Steven E. Ratner, Otsego County Department of Social
Services, Cooperstown, for Otsego County Department of Social
Services, respondent.
Christopher Hammond, Cooperstown, for Rosalyn
YY., respondent.
Tracy Donovan Laughlin, Cherry Valley, attorney for
the children.

MEMORANDUM AND ORDER


Peters, P.J.

Appeal from an order of the Family Court of Otsego County (Lambert, J.), entered September 14, 2011, which granted petitioner's application, in a proceeding pursuant to Family [*2]Ct Act article 10, to modify a prior order of custody.

Petitioner (hereinafter the mother) and respondent Timothy XX. (hereinafter the father) are the parents of three children, including Zachary XX. (born in 2002) and Camiren XX. (born in 2005), who are the subject of this appeal. The instant litigation originated with a February 2009 Family Ct Act article 10 neglect proceeding commenced by respondent Otsego County Department of Social Services (hereinafter DSS) against both parents alleging that their history of alcohol abuse and domestic violence created a risk to their children. Following both parents' admission to deleterious alcohol use in January 2010, Family Court ordered an adjournment in contemplation of dismissal conditioned on the parents' participation in services, with the father having custody while residing in the home of the children's paternal grandfather, respondent David XX. (hereinafter the grandfather). After the father was arrested on unrelated criminal charges in another state and the mother was enrolled in residential treatment for her alcoholism, Family Court granted DSS's petition to modify the prior order and placed the subject children in the temporary custody of the grandfather [FN1]. Thereafter, the mother completed her treatment and service requirements and, pursuant to a June 2011 consent order, began unsupervised visitation with the children.

Subsequently, in September 2011, the mother commenced the instant modification proceeding seeking, among other things, sole custody of Zachary and Camiren. The record confirms that, at the ensuing hearing held on September 9, 2011, severe flooding conditions rendered it impossible for DSS to transport the mother to the hearing. The father, who had been released from prison following his felony conviction and was again living in the home of the grandfather, opposed the mother's petition and objected to proceeding in her absence. The mother's counsel waived her presence and sought to go forward, noting that the mother had not been subpoenaed as a witness. Family Court denied the father's motion to dismiss for failure to proceed and indicated that, to the extent the father was requesting an adjournment, such motion was denied. The grandfather joined in the father's objection to that ruling. Following the close of proof, which included testimony from the mother's caseworker, the court found that extraordinary circumstances did not exist to overcome the mother's custodial rights [FN2]. Accordingly, Family Court granted the mother's petition, and this appeal by the grandfather [*3]ensued.

We affirm. The sole argument advanced by the grandfather on this appeal is that Family Court abused its discretion in failing to adjourn the hearing after the mother was unable to appear due to circumstances beyond her control. Neither the grandfather nor the father, however, requested an adjournment or continuance of the proceeding. Rather, the relief requested was outright dismissal of the mother's petition for failure to proceed. Nevertheless, Family Court declined to grant an adjournment, and its decision in that regard will not be disturbed absent a clear abuse of discretion (see Matter of Steven B., 6 NY3d 888, 889 [2006]; Matter of Braswell v Braswell, 80 AD3d 827, 829 [2011]).

Here, the record shows that the mother appeared through her counsel, who explained her absence and waived her appearance; thus, there was no default and a full hearing was held despite her absence (see Matter of Cecilia A., 199 AD2d 582, 583 [1993]; cf. Matter of Williams v Williams, 35 AD3d 1098, 1099-1100 [2006]). Although the grandfather maintains that the mother's absence deprived him of an opportunity to cross-examine her, it is undisputed that he did not subpoena her as a witness (compare Chamberlain v Dundon, 61 AD3d 1378, 1379 [2009]). The record reveals that relevant information concerning the mother's initial setbacks in treatment — followed by her later successes — were put into evidence, principally through the testimony of the mother's caseworker, a DSS employee. Specifically, the caseworker, who was subject to cross-examination, not only detailed the mother's successful completion of required services, but also set forth information regarding the apartment that the mother had obtained and the plans for close monitoring of the family by DSS as the children transitioned into a new home and school. Given all the circumstances, including Family Court's familiarity with this matter, we find no basis to conclude that the court abused its discretion in failing to adjourn the hearing.

Rose, Lahtinen, Malone Jr. and Garry, JJ., concur.

ORDERED that the order is affirmed, without costs. Footnotes

Footnote 1:It does not appear from Family Court's order that a prior determination of extraordinary circumstances was made when temporary custody of the children was awarded to the grandfather (see generally Matter of Cusano v Milewski, 68 AD3d 1272, 1273 [2009]; Matter of Lewis v Johnson, 302 AD2d 756, 757 [2003]).

Footnote 2:Family Court noted that the father, who had not only been incarcerated for some time due to the felony conviction, but had also failed to complete ordered services, was not a suitable care giver for the children at this time.