IN RE: ORCHID C. and Another (2019)

Order, Family Court, New York County (Clark V. Richardson, J.), entered on or about January 23, 2017, which denied respondent mother's motion to vacate an order of fact-finding and disposition, same court and Judge, entered on or about July 7, 2016, upon her default, which, upon a finding of permanent neglect, terminated respondent's parental rights to the subject children, and freed them for purposes of adoption, unanimously affirmed, without costs.

Family Court providently exercised its discretion in denying the mother's motion to vacate her default, since she failed to submit an affidavit setting forth a reasonable excuse for failing to appear and a meritorious defense.  Moreover, the affirmation from the mother's counsel failed to demonstrate a reasonable excuse for her absence from the proceeding (see Matter of Serenity Victoria M. [Allison B.], 150 A.D.3d 486, 51 N.Y.S.3d 886 [1st Dept. 2017];  Matter of Yadori Marie F. [Osvaldo F.], 111 A.D.3d 418, 419, 974 N.Y.S.2d 71 [1st Dept. 2013] ).  In particular, the mother failed to submit evidence in support of her argument that her chest pains prevented her from appearing in court during the fact-finding hearing, which occurred on two different dates, or to explain why she was unable to inform counsel or the court that she could not appear.

Since the mother failed to demonstrate a reasonable excuse for her default, this Court need not reach the issue of whether she presented a meritorious defense (see Matter of Serenity Victoria M., 150 A.D.3d at 486, 51 N.Y.S.3d 886).  In any event, the mother failed to demonstrate a meritorious defense, since she failed to submit an affidavit in support of her motion, and her counsel only set forth general, unsubstantiated statements that are insufficient to establish a meritorious defense (see Matter of Lenea'jah F. [Makeba T.S.], 105 A.D.3d 514, 515, 963 N.Y.S.2d 105 [1st Dept. 2013] ).  Moreover, she failed to submit evidence that she had participated in mental health treatment, complied in taking her medication, or attempted to secure housing and a source of income (see Matter of Paul G.D.H. [Yvonne H.], 147 A.D.3d 699, 700, 48 N.Y.S.3d 137 [1st Dept. 2017] ).