Opinion
2013-04-11
In re LENEA'JAH F., and Another, Dependent Children Under the Age of Eighteen Years, etc., Makeba T.S., Respondent–Appellant, Abbott House, Petitioner–Respondent.
Michael S. Bromberg, Sag Harbor, for appellant. Magovern & Sclafani, New York (Joanna M. Roberson of counsel), for respondent.
Michael S. Bromberg, Sag Harbor, for appellant. Magovern & Sclafani, New York (Joanna M. Roberson of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.
ANDRIAS, J.P., MOSKOWITZ, FREEDMAN, MANZANET–DANIELS, JJ.
Order, Family Court, New York County (Jody Adams, J.), entered on or about April 13, 2012, which denied respondent's motion to vacate orders of disposition entered on or about April 2, 2012, upon her default, terminating her parental rights to the subject children on the ground of permanent neglect, and committing the custody and guardianship of the children to the Commissioner of Social Services of the City of New York and petitioner agency for the purpose of adoption, unanimously affirmed, without costs. Appeal from aforesaid orders of disposition, unanimously dismissed, without costs, as taken from nonappealable papers.
Respondent failed to demonstrate a reasonable excuse for her absence from the proceeding and a meritorious defense to the allegation of permanent neglect ( see Matter of Alexander John B. [Cynthia A.], 87 A.D.3d 927, 929 N.Y.S.2d 589 [2011],lv. dismissed in part, denied in part18 N.Y.3d 917, 941 N.Y.S.2d 551, 964 N.E.2d 1018 [2012] ). Her sole submission was an affirmation by her counsel, who did not have personal knowledge of the facts. Counsel stated that respondent did not have the money to pay for transportation to the hearing, but she did not explain respondent's failure to notify either her attorney or the court that she was unable to appear ( see Matter of Isaac Howard M. [Fatima M.], 90 A.D.3d 559, 560, 936 N.Y.S.2d 11 [1st Dept. 2011], lv. dismissed in part, denied in part18 N.Y.3d 975, 944 N.Y.S.2d 476, 967 N.E.2d 701 [2012] ).
Counsel stated that respondent would have testified that she lacked medical insurance and financial resources to plan for the children ( seeSocial Services Law § 384–b[7][a] ). This general, unsubstantiated statement is insufficient to establish a meritorious defense. Respondent failed to show that petitioner made no effort to help her with her drug addiction, or that she remained drug-free, cooperated with drug testing or regularly attended therapy ( seeSocial Services Law § 384–b[7][c]; Matter of Destiny S. [Hilda S.], 79 A.D.3d 666, 913 N.Y.S.2d 223 [1st Dept. 2010], lv. denied16 N.Y.3d 709, 2011 WL 1237536 [2011] ).
Contrary to respondent's contention, her attorney's refusal to participate in the fact-finding hearing in her absence did not deprive her of effective representation; it preserved her opportunity to seek to open the default ( see Matter of Male J., 214 A.D.2d 417, 417, 625 N.Y.S.2d 179 [1st Dept. 1995] ).