IN RE: FABIOLA A. (2024)

Order, Family Court, Bronx County (Llinét M. Rosado, J.), entered on or about November 29, 2022, which denied petitioner mother's motion to vacate a final custody order, same court and Judge, entered upon her default on February 28, 2022, which, after an inquest, awarded respondent father custody of the two subject children, unanimously affirmed, without costs.

Family Court providently exercised its discretion in denying the mother's motion to vacate her default for not appearing at the fact-finding hearing because her moving papers failed to demonstrate a reasonable excuse for her absence (see Matter of Kerry L. v. Chantelle Monique J., 209 A.D.3d 585, 585, 177 N.Y.S.3d 225 [1st Dept. 2022]).  Although the mother asserted in support of her vacatur motion that she failed to appear because she could not locate any court personnel to direct her to the hearing, her claim was insufficient to establish a reasonable excuse for her default.  At a minimum, the mother did not explain why she did not contact her attorney or the court (see Matter of Tyrone F. v. Mariah O., 165 A.D.3d 433, 433, 85 N.Y.S.3d 46 [1st Dept. 2018]).  Moreover, the mother's purported excuse for failing to appear conflicts with her prior trial counsel's representation to Family Court that the mother did not appear due to “personal reasons”.

This Court need not consider whether the mother established a potentially meritorious defense to the father's custody petition because she failed to establish a reasonable excuse for her default (see Matter of Matthew C. v. Robin B., 162 A.D.3d 436, 436, 78 N.Y.S.3d 332 [1st Dept. 2018]).  Even if the Court were to review the issue, the mother does not claim on appeal that she raised a meritorious defense, nor does she address the father's fact-finding testimony that he had been caring for the children without her assistance since March 2018.  She also never addressed the fact that the attorney for the children (AFC), reported, while the vacatur motion was pending, that the children wished to continue living with the father.

As to the mother's assertion that she was deprived of the effective assistance of counsel, we find that she failed to sustain her burden of demonstrating that she was denied meaningful representation, and that the deficient representation resulted in actual prejudice (see Matter of Asia Sabrina N. [Olu N.], 117 A.D.3d 543, 544, 985 N.Y.S.2d 560 [1st Dept. 2014]).  The mother contends that her counsel was ineffective because the mother's affidavit annexed to the motion was not notarized.  Nevertheless, even though it was not notarized, the court considered – and rejected – the mother's factual claims in her affidavit.  Thus, the mother was not actually prejudiced by the procedural defect (see People v. Street, 212 A.D.3d 657, 658, 181 N.Y.S.3d 338 [2d Dept. 2023]).