IN RE: JOSEPH N. (Anonymous).

Reset A A Font size: Print

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

IN RE: JOSEPH N. (Anonymous). Heart Share Human Services of New York, Roman Catholic Diocese of Brooklyn, et al., respondents; Brenda E. (Anonymous), appellant.

Decided: November 27, 2007

STEPHEN G. CRANE, J.P., STEVEN W. FISHER, EDWARD D. CARNI, and WILLIAM E. McCARTHY, JJ. Robert E. Nicholson, Brooklyn, N.Y., for appellant. Wingate, Kearney & Cullen, Brooklyn, N.Y. (Angelique I. Segarra of counsel), for respondent Heart Share Human Services of New York, Roman Catholic Diocese of Brooklyn. Steven Banks, New York, N.Y. (Tamara A. Steckler and Raymond E. Rogers of counsel), Law Guardian for the child.

In a proceeding pursuant to Social Services Law § 384-b to terminate parental rights on the ground of permanent neglect, the mother appeals from an order of the Family Court, Kings County (Freeman, J.), dated March 24, 2006, which denied her motion, in effect, to vacate an order of fact-finding and disposition (one paper) of the same court dated August 9, 2005, which, upon, inter alia, her default in appearing at the fact-finding and dispositional hearings, terminated her parental rights, and transferred guardianship and custody of the subject child to the Commissioner of Social Services of the City of New York and Heart Share Human Services of New York, Roman Catholic Diocese of Brooklyn for the purpose of adoption.

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

The mother failed to appear at both the fact-finding hearing and the subsequent dispositional hearing.   The mother's failure to appear at those hearings constituted a default and the Family Court properly proceeded by inquest (see Matter of David John D., 38 A.D.3d 661, 662, 831 N.Y.S.2d 536).

A parent seeking to vacate a default in a termination of parental rights proceeding must establish a reasonable excuse for the default, as well as a meritorious defense to the proceeding (see CPLR 5015[a][1];  Matter of Fa'Shon S., 40 A.D.3d 863, 836 N.Y.S.2d 636;  Matter of David John D., 38 A.D.3d at 662, 831 N.Y.S.2d 536;  Matter of Michael William O., 16 A.D.3d 511, 791 N.Y.S.2d 612).   The determination whether to relieve a party of a default is a matter left to the sound discretion of the Family Court (see Matter of Viergela A., 40 A.D.3d 630, 631, 835 N.Y.S.2d 373;  Matter of Samantha P., 297 A.D.2d 348, 746 N.Y.S.2d 844).   Here, the mother presented neither a meritorious defense to the termination petition nor a reasonable excuse for her failure to appear at the fact-finding hearing (see Matter of Ricky V., 4 A.D.3d 368, 368-369, 770 N.Y.S.2d 881;  Matter of Samantha P., 297 A.D.2d 348, 746 N.Y.S.2d 844;  Matter of Iris R., 295 A.D.2d 521, 744 N.Y.S.2d 685;  see also Matter of Danielle R., 239 A.D.2d 305, 658 N.Y.S.2d 857).   Accordingly, the Family Court properly denied the motion to vacate.

Copied to clipboard