Matter of Jayden M.: Email Service Does Not Trigger Appellate Deadlines & “Standing-Mute” Representation Constitutes Party Default

Introduction

The Fourth Department’s decision in Matter of Jayden M. (Carlos M.), 237 A.D.3d 1560 (4th Dept 2025), addresses two recurrent procedural flashpoints in Family Court practice: (1) whether the 30-day period to take an appeal begins when the court transmits its order solely by e-mail, and (2) whether a parent’s failure to appear, coupled with counsel’s refusal to participate (“standing mute”), constitutes a default that limits the scope of appellate review. The appeal arose from the Erie County Department of Social Services’ petition to terminate the parental rights of Carlos M. on the ground of permanent neglect.

Although the father challenged numerous facets of the termination order, the Appellate Division ultimately dismissed all portions of the appeal except the narrow challenge to the denial of an adjournment. Nonetheless, the opinion is significant because it (a) firmly states that service of a Family Court order by e-mail alone is not a statutorily recognized method for triggering the deadline to appeal, and (b) synthesizes earlier cases to declare that when counsel affirmatively declines to advocate in a client’s absence, the party will be treated as in default.

Summary of the Judgment

The Fourth Department refused to dismiss the father’s appeal as untimely because the record suggested that the Family Court served the order by e-mail only, a method not authorized by Family Court Act § 1113.
Nevertheless, the court held that the order was “entered upon the father’s default.” The father willfully failed to appear despite transportation being offered, and his attorney explicitly stated that he was “not authorized” to proceed and stood mute.
Under CPLR 5511, an appellate court may review only those issues that were actually “the subject of contest” below; therefore, most of the father’s arguments were unreviewable. The sole preserved issue—denial of counsel’s adjournment request—was affirmed because neither the father nor counsel showed due diligence.
The appeal was therefore dismissed except as to the adjournment argument, and the order terminating parental rights was affirmed in full.

Analysis

A. Precedents Cited

The Fourth Department anchored its ruling in a line of cases dealing with two discrete doctrines:

Timeliness of Appeals and Mode of Service
- Matter of Bukowski v. Florentino, 210 A.D.3d 1520 (4th Dept 2022)
- Matter of Robert M. v. Barbara L., 227 A.D.3d 141 (3d Dept 2024)
- Matter of Grayson S. [Thomas S.], 209 A.D.3d 1309 (4th Dept 2022)
These decisions collectively hold that if a party receives the order only by e-mail, the 30-day appeal clock never starts because Family Court Act § 1113 does not list e-mail as a permissible service method.
Default Status When Counsel “Stands Mute”
- Matter of Reardon v. Krause, 219 A.D.3d 1710 (4th Dept 2023)
- Matter of Bianca F. [Terrald F.], 191 A.D.3d 1491 (4th Dept 2021)
- Matter of Lastanzea L. [Lakesha L.], 87 A.D.3d 1356 (4th Dept 2011)
- Parallel doctrines in other Departments: Anastasia N.A., 218 A.D.3d 563 (2d Dept 2023); Jaylen A., 125 A.D.3d 535 (1st Dept 2015); Naomi KK., 80 A.D.3d 834 (3d Dept 2011).
Together, they hold that a party’s non-appearance ordinarily does not equal default if counsel is present and participates, but default does occur when counsel refuses to participate.
Adjournment Discretion
- Matter of Steven B., 6 N.Y.3d 888 (2006)
- Matter of Sophia M.G.-K., 84 A.D.3d 1746 (4th Dept 2011)
These cases articulate the “sound discretion” standard for adjournments, placing the burden on the requesting party to show diligence and unavoidable need.

B. Court’s Legal Reasoning

No Statutory Authority for E-mail Service
Family Court Act § 1113 specifies personal delivery, mail, and “overnight delivery service” as valid modes. The Fourth Department simply applied statutory text—service by e-mail is a nullity. Thus, the appeal could not be dismissed as untimely.
Determining Default Status
• CPLR 321(a) allows parties to appear “in person or by attorney.”
• Case law (e.g., Pollard v. Pollard, 63 A.D.3d 1628) says that where counsel appears and participates, there is no default.
• The twist here: counsel did not participate; he expressly declined. By analogizing to Reardon and Bianca F., the court held this satisfied the “standing-mute default” rule.
Scope of Appellate Review Under CPLR 5511
If an order is “entered on default,” only issues that were actually litigated below can be reviewed. Everything else is beyond the court’s reach.
Adjournment Denial Upheld
The father knew the date, transportation was offered, and the scheduling conflict was of his own making. The lack of diligence defeated the request under Steven B.

C. Likely Impact of the Decision

Clarifies Appellate Time-Clock Statewide — Family Courts that routinely e-mail orders must now ensure service by one of the § 1113 methods or risk open-ended appeal windows.
Solidifies “Standing-Mute Default” Doctrine — Provides a clear directive: counsel who simply attends but refuses to advocate will subject the client to default status, shrinking appellate options.
Practical Guidance to Parent Attorneys — Lawyers should secure express authority to proceed or, at minimum, place affirmative arguments on the record to avoid default consequences.
Influence Beyond TPR Proceedings — The principles apply equally in custody, guardianship, Article 10 abuse/neglect, and even civil Supreme Court matters.

Complex Concepts Simplified

Permanent Neglect (SSL § 384-b): A statutory ground for terminating parental rights when a parent fails for 12 months to plan or take steps toward a child’s return, despite the agency’s diligent efforts.
Fact-Finding Hearing: The trial phase where the court determines whether the alleged ground (here, permanent neglect) is proven.
Disposition: The remedy phase—what should happen after the facts are found (e.g., TPR, guardianship, adoption).
Default: Loss of the right to contest because a party failed to take an essential step (here, appearing/participating).
Standing-Mute: Counsel is physically present but refuses to examine witnesses, lodge objections, or otherwise advocate, effectively leaving the party unrepresented.
CPLR 5511: New York’s rule limiting appeals from default judgments except on issues that were actively litigated.

Conclusion

Matter of Jayden M. is less about the merits of a termination of parental rights than about two procedural guardrails: (1) how an order must be served to start appellate time limits and (2) what level of participation is required to avoid default. By declaring that e-mail service alone is insufficient and equating counsel’s “stand-mute” posture with party default, the Fourth Department provides critical guidance for litigants and courts alike. Practitioners should heed the decision by ensuring proper service methods and by actively participating— even when a client is absent— to preserve appellate rights. The ruling’s clarity will likely curb future disputes over timeliness and default status, thereby promoting procedural regularity across New York’s Family Courts.