Opinion
2013-03-14
In re Ilyas ZAIRE A.–R., A Dependent Child Under Eighteen Years of Age, etc., Habiba A.–R., Respondent–Appellant, Catholic Guardian Society and Home Bureau, Petitioner–Respondent.
Geoffrey P. Berman, Larchmont, for appellant. Joseph T. Gatti, New York, for respondent.
Geoffrey P. Berman, Larchmont, for appellant. Joseph T. Gatti, New York, for respondent.
Karen Freedman, Lawyers for Children, Inc., New York (Doneth Gayle of counsel), attorney for the child.
ANDRIAS, J.P., SWEENY, FREEDMAN, FEINMAN, GISCHE, JJ.
Order, Family Court, New York County (Jody Adams, J.), entered on or about December 14, 2011, which denied respondent mother's motion to vacate an order of disposition, same court and Judge, entered on or about October 13, 2011, upon her default, which, upon a finding of permanent neglect, terminated her parental rights to the subject child, and transferred custody and guardianship of the child to petitioner agency for the purpose of adoption, unanimously affirmed, without costs.
Respondent failed to establish a reasonable excuse for her default and a meritorious defense to the allegations asserted in the petition. Her claim that she was late for the hearing because she and a companion were stopped by police for improperly traveling in the three person High Occupancy Vehicle lane, was unsubstantiated and she did not provide any explanation for her failure to contact the court or her counsel to advise them that she would be late ( see Matter of Evan Matthew A. [Jocelyn Yvette A.], 91 A.D.3d 538, 539, 938 N.Y.S.2d 6 [1st Dept. 2012] ). The fact that respondentpreviously defaulted further supports the court's decision not to credit her alleged excuse ( see Matter of Damian Richard A., Jr., 49 A.D.3d 458, 459, 856 N.Y.S.2d 43 [1st Dept. 2008] ).
Moreover, respondent failed to establish a meritorious defense to the allegation of permanent neglect. Despite respondent's claims to the contrary, the agency exercised “diligent efforts” to reunite her with her child, by, among other things, formulating a service plan, holding periodic planning meetings, scheduling regular visits with the child, and referring respondent for needed therapy. The evidence establishes that, despite these efforts, respondent failed to consistently visit with the child, poorly interacted with the child when she did visit, and failed to complete necessary mental health services or plan for the child's future ( see Matter of Shaqualle Khalif W. [Denise W.], 96 A.D.3d 698, 699, 947 N.Y.S.2d 116 [1st Dept. 2012];Matter of Marah B. [Lee D.], 95 A.D.3d 604, 605, 944 N.Y.S.2d 109 [1st Dept.], lv. denied19 N.Y.3d 810, 2012 WL 3854504 [2012] ).
Contrary to respondent's contention, a suspended judgment is not warranted under the circumstances. A preponderance of the evidence supports the finding that termination of respondent's parental rights is in the child's best interest ( see Matter of Olushola W.A., 41 A.D.3d 179, 180, 838 N.Y.S.2d 54 [1st Dept. 2007] ). By the time of the dispositional hearing, he was six years old, and had lived with his kinship foster family, who was meeting all of his special needs, virtually his entire life ( see Matter of Roger Guerrero B., 56 A.D.3d 262, 262–63, 867 N.Y.S.2d 400 [1st Dept. 2008], lv. denied12 N.Y.3d 704, 876 N.Y.S.2d 705, 904 N.E.2d 842 [2009] ).