IN RE: L.R.E. (2025)

Order of fact-finding and disposition (one paper), Family Court, New York County (Grace Oboma–Layat, J.), entered on or about September 25, 2024, which, upon her mother's default, determined that the mother neglected the subject child, to the extent it brings up for review the denial of her motion to dismiss the petition for failure to establish a prima facie case of neglect and the denial of her request for an adjournment, unanimously affirmed, without costs.

No appeal lies from an order issued on default (see CPLR 5511;  see Matter of Michael T.L. [Schadracia L.—Micka L.], 236 A.D.3d 519, 520, 228 N.Y.S.3d 188 [1st Dept. 2025]).  Nonetheless, we consider the appeal insofar as it brings up for review issues that were decided by Family Court and that were “the subject of contest below” before the mother's default (see Matter of Jada J. [Reginald J.], 210 A.D.3d 499, 500, 178 N.Y.S.3d 41 [1st Dept. 2022];  Darlene H. v. Abdus R., 204 A.D.3d 550, 551, 165 N.Y.S.3d 282 [1st Dept. 2022]).

Viewing the evidence in the light most favorable to petitioner and giving it the benefit of every reasonable inference, petitioner made out a prima facie case of neglect (see Matter of Angel L. [Victor M.], 182 A.D.3d 429, 429, 122 N.Y.S.3d 303 [1st Dept. 2020]).  Petitioner alleged that on January 19, 2023, the mother neglected the child by abusing alcohol and becoming intoxicated in the hallway of an apartment building.  Through documentary evidence, as well as the testimony of a police officer and an emergency medical technician who were called to the scene, petitioner established that the mother, who was the two-month-old child's sole caretaker, permitted a resident of the building to take the child to the resident's apartment while the mother consumed alcohol and marijuana to the point of intoxication so severe that she had to be hospitalized.  The record also established that the building resident, who was concerned enough about the mother's condition that she volunteered to watch the child and then called 911, was at most a casual acquaintance of the mother and was not known to the child.  Even though the child was not actually harmed, the mother's poor judgment about the child's care, coupled with her misuse of alcohol, placed the child in imminent danger of physical harm (see Family Court Act § 1012[f][i][B];  Matter of Nylah E. [Noemi C.], 184 A.D.3d 467, 467–468, 124 N.Y.S.3d 186 [1st Dept. 2020]).

Under these circumstances, Family Court properly denied the mother's motion to dismiss for failure to establish a prima facie case (see Matter of Caleah C.M.S. [Calvin S.], 174 A.D.3d 457, 458, 107 N.Y.S.3d 5 [1st Dept. 2019];  see also Matter of Wolfgang L., 188 A.D.3d 688, 689, 133 N.Y.S.3d 96 [2d Dept. 2020]).  This conclusion holds true even though the record establishes the occurrence of only a single incident, as the mother's judgment during that incident was severely impaired and the child was exposed to a risk of substantial harm (Matter of Liarah H. [Dora S.], 111 A.D.3d 514, 515, 975 N.Y.S.2d 389 [1st Dept. 2013]).

Family Court providently exercised its discretion in denying the mother's request for an adjournment of the fact-finding hearing when she failed to appear, for the second time in several months, on the day she was scheduled to testify, without contacting her attorney or offering any excuse for her absence (see Matter of Nautica Skyy W., 198 A.D.3d 589, 589, 152 N.Y.S.3d 912 [1st Dept. 2021]).  Further protraction of the proceedings was not in the child's best interests, and the record shows that the mother also had a history of failing to appear at visitations without warning or explanation (see Matter of Naethael Makai A. [Adwoa A.], 135 A.D.3d 438, 439, 22 N.Y.S.3d 426 [1st Dept. 2016];  Matter of Ramon David W., 290 A.D.2d 357, 357, 736 N.Y.S.2d 227 [1st Dept. 2002]).

We have considered the mother's remaining arguments and find them unavailing.