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THE 3RD DEPARTMENT REFUSED TO AMEND THE NOTICE OF APPEAL TO INSERT AN ORDER FROM WHICH NO APPEAL HAD BEEN TAKEN; APPEAL DISMISSED (THIRD DEPT).

The Third Department, dismissing respondent mother’s appeal, determined mother failed to timely appeal the order terminating her parental rights. Mother submitted a notice of appeal after she was served with the April 2018 permanency hearing order, not within 35 days of her being served with the November 2016 order terminating her parental rights:

Respondent contends that the affidavit submitted with her notice of appeal demonstrates that she intended to appeal the November 2016 order terminating her parental rights, rather than the April 5, 2018 permanency hearing order. Accordingly, respondent asks this Court to “construe [her appeal] as such, and deem it timely filed.” Despite this request, the order terminating respondent’s parental rights was entered and mailed to respondent in November 2016, 18 months before her May 2018 notice of appeal. Thus, even if we were to construe it as respondent requests, because the notice of appeal was not filed and served “within 35 days after the order was mailed” to respondent, it was untimely and we lack jurisdiction to hear the appeal … . Further, despite respondent’s contention that her affidavit accompanying the notice of appeal demonstrates her intent to appeal the order terminating her parental rights, this affidavit explicitly and repeatedly references the permanency hearing order. Although this Court “may treat a notice of appeal which contains an inaccurate description of the judgment or order appealed from as valid,” it may not, as respondent requests, “amend a notice of appeal so as to insert therein an order from which no appeal has in fact ever been taken” … . Matter of Alan VV. (Amanda RR.), 2020 NY Slip Op 03574, Third Dept 6-26-20

 

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