Opinion
2014-05-6
In re YECLLYNE P.-H. and Another, Children Under the Age of Eighteen Years, etc., Jose P.V., Respondent–Appellant, v. Administration for Children's Services, Petitioner–Respondent.
Anne Reiniger, New York, for appellant. Zachary W. Carter, Corporation Counsel, New York (Victoria Scalzo of counsel), for respondent.
Anne Reiniger, New York, for appellant. Zachary W. Carter, Corporation Counsel, New York (Victoria Scalzo of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the children.
GONZALEZ, P.J., MAZZARELLI, SWEENY, MANZANET–DANIELS, CLARK, JJ.
Order, Family Court, Bronx County (Carol R. Sherman, J.), entered on or about April 22, 2013, which denied respondent father's motion to vacate the orders of fact-finding and disposition, same court and Judge, entered upon his default on or about April 9, 2012, unanimously affirmed, without costs.
The Family Court providently exercised its discretion in denying respondent's motion since the record shows that he willfully refused to appear at the April 9, 2012 fact-finding and dispositional hearings ( seeFamily Ct. Act § 1042). Respondent did not deny receiving notice of the hearings, and instead merely claimed in his motion papers that he did not have an attorney assigned to him to “follow up with [him] about th[e] date [of the hearings],” did not know he was required to appear on that date, and that if he had been informed, he had “forgotten.” The court properly determined that respondent's excuse was invalid, especially given his failure to appear or contact the court until nearly a year after the petition was filed. Moreover, the respondent's several prior unexplained absences from court proceedings supports a finding of willful default ( see Matter of Rozelle Tyrone Lee P., 19 A.D.3d 237, 798 N.Y.S.2d 9 [1st Dept.2005],lv. dismissed5 N.Y.3d 839, 805 N.Y.S.2d 542, 839 N.E.2d 895 [2005] ).
While respondent's willful default alone warranted denial of the motion, we further note that respondent failed to establish any meritorious defense to the allegations of neglect based on the children's exposure to acts of domestic violence between the parents ( seeFamily Ct. Act §§ 1012[f][i] [B], 1042; Matter of Lonell J., 242 A.D.2d 58, 60–61, 673 N.Y.S.2d 116 [1st Dept.1998] ). Respondent failed to dispute or address at least two incidents described in the petition, in domestic incident reports, and by the mother at the hearing.
Respondent failed to preserve his arguments regarding a due process violation and his right to a hearing on the motion ( see Matter of Kleevuort C. [Fredlyn V.], 84 A.D.3d 1371, 1371, 925 N.Y.S.2d 119 [2d Dept.2011] ). In any event, the arguments are unavailing ( see Matter of Taylor C. [Christin C.], 89 A.D.3d 405, 406, 931 N.Y.S.2d 852 [1st Dept.2011] ).