Opinion
8004–8005
01-03-2019
IN RE MESSIAH G., a Dependent Child Under Eighteen Years of Age, etc., Giselle F., Respondent–Appellant, v. Catholic Guardian Services, Petitioner–Respondent.
Geoffrey P. Berman, Larchmont, for appellant. Magovern & Sclafani, Mineola (Joanna M. Roberson of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Riti P. Singh of counsel), attorney for the child.
Geoffrey P. Berman, Larchmont, for appellant.
Magovern & Sclafani, Mineola (Joanna M. Roberson of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Riti P. Singh of counsel), attorney for the child.
Sweeny, J.P., Gische, Kahn, Oing, Singh, JJ.
Appeal from order, Family Court, New York County (Adetokunbo O. Fasanya, J.), entered on or about July 14, 2017, which, upon respondent mother's default at the dispositional hearing, found that respondent permanently neglected the subject child, and terminated her parental rights to the child and transferred custody of the child to petitioner agency for purposes of adoption, unanimously dismissed, without costs. Order, same court and Judge, entered on or about September 29, 2017, which denied respondent's motion to vacate her default, unanimously affirmed, without costs.
To the extent respondent appeals from the permanent neglect finding set forth in the dispositional order, the appeal must be dismissed as untimely (see Family Court Act § 1113 ; Matter of Rashi–Malik Olatunji G. [Quashi G.], 121 A.D.3d 540, 994 N.Y.S.2d 610 [1st Dept. 2014], lv denied 24 N.Y.3d 913, 2015 WL 94733 [2015] ).
In support of her motion to vacate her default, respondent failed to demonstrate a reasonable excuse for the default and a potentially meritorious defense (see CPLR 5015[a][1] ; Matter of Arianna–Samantha Lady Melissa S. [Carissa S.], 134 A.D.3d 582, 583, 23 N.Y.S.3d 31 [1st Dept. 2015], lv dismissed in part, denied in part 27 N.Y.3d 952, 29 N.Y.S.3d 914, 49 N.E.3d 1208 [2016] ). Her proffered excuses—that she was unaware of the hearing date and that she was overcome with grief at the death of her grandmother—are supported only by the uncorroborated affirmation of counsel without personal knowledge of the facts (see Matter of Lenea'jah F. [Makeba T.S.], 105 A.D.3d 514, 963 N.Y.S.2d 105 [1st Dept. 2013] ; Matter of Chelsea Antoinette A. [Anna S.], 88 A.D.3d 627, 931 N.Y.S.2d 503 [1st Dept. 2011] ). Respondent's claim to have been unaware of the hearing date is also belied by the record (see Matter of Christina McK. v. Kyle S., 154 A.D.3d 548, 62 N.Y.S.3d 261 [1st Dept. 2017] ). If she misplaced the paper on which she had written the date, she should have reached out to her attorney or to the agency for assistance (see Matter of Jenny F. v. Felix C., 121 A.D.3d 413, 993 N.Y.S.2d 698 [1st Dept. 2014] ). Respondent also failed to explain how the death of her grandmother nearly one month earlier prevented her from attending the hearing—especially since she claims she went to court two days before the hearing, on the date of her grandmother's memorial service.
In any event, clear and convincing evidence established that respondent permanently neglected the child despite the agency's diligent efforts (see Social Services Law § 384–b[3][g][i], [7][a], [f] ; Matter of Star Leslie W., 63 N.Y.2d 136, 481 N.Y.S.2d 26, 470 N.E.2d 824 [1984] ). The agency scheduled regular visitation and planning meetings, made appropriate referrals, and repeatedly explained the importance of compliance with the service plan (see Matter of Christian D. [Marian R.], 157 A.D.3d 599, 69 N.Y.S.3d 314 [1st Dept. 2018], lv denied 31 N.Y.3d 904, 2018 WL 1957280 [2018] ; Matter of Essence T.W. [Destinee R.W.], 139 A.D.3d 403, 404, 30 N.Y.S.3d 98 [1st Dept. 2016] ). However, respondent's attendance at visits was inconsistent (see Matter of Lihanna A. [Marcella H.], 140 A.D.3d 404, 404, 30 N.Y.S.3d 875 [1st Dept. 2016], lv denied 28 N.Y.3d 904, 2016 WL 6110899 [2016] ), she failed to take advantage of the recommended services (see Matter of Micah Zyair F.W. [Tiffany L.], 110 A.D.3d 579, 579, 973 N.Y.S.2d 600 [1st Dept. 2013] ), and she repeatedly refused to acknowledge the need for substance abuse or mental health treatment, demonstrating a lack of insight into the conditions that led to the child's removal (see Matter of Nathaniel T., 67 N.Y.2d 838, 501 N.Y.S.2d 647, 492 N.E.2d 775 [1986] ). The Family Court also properly drew a negative inference from respondent's failure to testify on her own behalf (see Matter of Alford Isaiah B. [Alford B.], 107 A.D.3d 562, 562, 968 N.Y.S.2d 36 [1st Dept. 2013] ).