Rhonda S. (Anonymous), appellant. v. << (2007)

In a child protective proceeding pursuant to Family Court Act article 10, the mother appeals from an order of the Family Court, Westchester County (Duffy, J.), dated January 12, 2007, which denied her motion to vacate an order of disposition of the same court dated October 11, 2006, entered upon her default.

ORDERED that the order is affirmed, without costs or disbursements.

 The Family Court providently exercised its discretion in denying the mother's motion to vacate the order of disposition entered upon her default.   The mother claimed that the written notice of the hearing, which was to take place on October 11, 2006, at 10:00 A.M., was destroyed in a flood at her home.   However, the mother was present in court when the hearing was scheduled.   Additionally, there was no evidence presented to suggest that she contacted her attorney or the court to confirm the time of the hearing, and the mother did not allege that she did so.   Under these circumstances, the Family Court correctly concluded that the mother “willfully refused to appear at the hearing” (Family Ct. Act § 1042;  see Matter of Christian T., 12 A.D.3d 613, 785 N.Y.S.2d 93;  Matter of W. Children, 256 A.D.2d 412, 413, 681 N.Y.S.2d 574;  Matter of Commissioner of Social Servs. v. Margaret D., 221 A.D.2d 439, 633 N.Y.S.2d 566;  Matter of Jamel H., 187 A.D.2d 513, 590 N.Y.S.2d 746).

 The Family Court also providently exercised its discretion in denying the application of the mother's attorney for an adjournment of the dispositional hearing (see Matter of Venditto v. Davis, 39 A.D.3d 555, 831 N.Y.S.2d 725;  Matter of Paulino v. Camacho, 36 A.D.3d 821, 822, 828 N.Y.S.2d 496;  Matter of Sicurella v. Embro, 31 A.D.3d 651, 819 N.Y.S.2d 75;  cf. Matter of Anthony M., 63 N.Y.2d 270, 283, 481 N.Y.S.2d 675, 471 N.E.2d 447;  Matter of Hogan v. Hogan, 271 A.D.2d 533, 705 N.Y.S.2d 678).   In light of the mother's history of nonappearance for at least two prior court dates and her knowledge of the hearing date (see Matter of Starcy G., 13 A.D.3d 532, 532-533, 786 N.Y.S.2d 217), the Family Court properly proceeded with the dispositional hearing in the mother's absence (see Family Ct. Act § 1042).

The mother's remaining contentions are without merit.