IN RE: ROZELLE TYRONE LEE P.

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Supreme Court, Appellate Division, First Department, New York.

IN RE: ROZELLE TYRONE LEE P., also known as Roselle P., A Dependent Child Under the Age of Eighteen Years, etc., Nancyrose C., also known as Nancyrose J., Respondent-Appellant, Administration for Children's Services, Petitioner-Respondent.

Decided: June 21, 2005

MAZZARELLI, J.P., FRIEDMAN, SULLIVAN, WILLIAMS, GONZALEZ, JJ. Dora M. Lassinger, East Rockaway, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent. Steven Banks, The Legal Aid Society, New York (Diane Pazar of counsel), Law Guardian.

Order, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about December 10, 2003, which denied respondent-appellant's motion to vacate a fact-finding and dispositional order, entered on or about October 1, 2003, upon respondent's failure to appear in court, adjudging the child to be neglected and abused and directing release of the child to the custody of his father under the supervision of a child protective agency for one year, unanimously affirmed, without costs.

The motion was properly denied upon a record that amply supports a finding that respondent's default was willful (Family Ct. Act § 1042).   The court proceeding in Virginia, offered by respondent as the reason for her default, was completed nine days before the scheduled date of the fact-finding hearing, and respondent does not even attempt to explain why she did not notify Family Court that she would be unable to attend (see Matter of Jazel Dominique D., 209 A.D.2d 410, 618 N.Y.S.2d 419 [1994], lv. dismissed 85 N.Y.2d 857, 639 N.Y.S.2d 782, 662 N.E.2d 1072 [1995] ).   Nor was this respondent's first failure to attend a scheduled hearing (cf. Matter of Mursol B., 266 A.D.2d 76, 698 N.Y.S.2d 467 [1999] ).