IN RE: ISAIAH H. (2009)

 Family Court erred in granting petitioner's motion for a default order finding that respondent mother permanently neglected her son and in thereafter, following a dispositional hearing, terminating her parental rights with respect to him pursuant to Social Services Law § 384-b.   The mother's failure to appear at the fact-finding hearing on the issue of permanent neglect “does not automatically constitute a default,” in view of the fact that the attorney for the mother appeared on her behalf and requested an adjournment (Matter of David A.A. v. Maryann A., 41 A.D.3d 1300, 1300, 837 N.Y.S.2d 479;  Matter of Shemeco D., 265 A.D.2d 860, 695 N.Y.S.2d 799).  “A party who is represented at a scheduled court appearance by an attorney has not failed to appear” (Matter of Sales v. Gisendaner, 272 A.D.2d 997, 997, 707 N.Y.S.2d 562).

We therefore reverse the order, deny petitioner's motion, and remit the matter to Family Court for a hearing on the petition.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, petitioner's motion is denied, and the matter is remitted to Family Court, Erie County, for a hearing on the petition.

MEMORANDUM: