Matter of Iyana W. (Shamark W.--Tonya B.)

124 A.D.3d 418, 1 N.Y.S.3d 48

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 6, 2015
• Docket: 13892B 13892A 13892
• Status: Published

Opinion

Appeal from order of disposition, Family Court, Bronx County (Linda Tally, J.), entered on or about October 18, 2013, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about June 28, 2013, which found, after a hearing and inquest, that respondent Shamark W. had sexually abused his daughter and derivatively neglected her brother, unanimously dismissed, without costs, as taken from a nonappealable order. Appeal from orders of protection, same court and Judge, entered on or about October 18, 2013, unanimously dismissed, without costs, as abandoned.

The record shows that respondent failed to appear on the second date of the fact-finding hearing, and that the Family Court continued the hearing as an inquest. The Family Court properly deemed respondent to be in default, because his trial counsel did not state that she wished to proceed in his absence and was authorized to do so (see Matter of Jaquan Tieran B. [Latoya B.], 105 AD3d 498, 499 [1st Dept 2013]). An order entered upon default is not appealable (see id.).

In any event, respondent failed to preserve his ineffective counsel claim (see Matter of Niyah E. [Edwin E.], 71 AD3d 532, 533 [1st Dept 2010]), and the argument is otherwise unavailing (see Matter of Lenea'jah F. [Makeba T.S.], 105 AD3d 514, 515 [1st Dept 2013]; see also Matter of Nikeerah S. [Barbara S.], 69 AD3d 421, 422 [1st Dept 2010]).

Concur — Mazzarelli, J.P., DeGrasse, Manzanet-Daniels, Feinman and Gische, JJ.