Opinion
7443
10-23-2018
IN RE MISHELYS R., and Others, Children Under the Age of Eighteen Years, etc., Garland R., Respondent–Appellant, v. Administration for Children's Services, Petitioner–Respondent.
Larry S. Bachner, New York, for appellant. Zachary W. Carter, Corporation Counsel, New York (Deborah E. Wassel of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Patricia Colella of counsel), attorney for the children.
Larry S. Bachner, New York, for appellant.
Zachary W. Carter, Corporation Counsel, New York (Deborah E. Wassel of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Patricia Colella of counsel), attorney for the children.
Sweeny, J.P., Gische, Tom, Mazzarelli, Kern, JJ.
Order, Family Court, Bronx County (David J. Kaplan, J.), entered on or about December 5, 2017, which denied respondent father's motion to vacate an order of fact-finding and disposition, same court and Judge, entered on or about October 11, 2017, upon respondent's default, determining, inter alia, that the father neglected the subject children, unanimously affirmed, without costs.
The court properly denied the father's motion to vacate, as the record shows that he failed to provide a reasonable excuse for his default in appearing at the fact-finding and dispositional hearing (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 father's claim that he could not attend the morning hearing due to a medical appointment scheduled for later in the day is insufficient, since he clearly had ample time to attend both the hearing and the appointment. The father also failed to show that he made any effort to notify his counsel or the court of his inability to attend (see Matter of Octavia Loretta R. [Randy McN.-Keisha W.], 93 A.D.3d 537, 941 N.Y.S.2d 41 [1st Dept. 2012] ).
Furthermore, the father did not demonstrate a meritorious defense to the neglect petition (see Family Ct. Act § 1042 ), as he relied upon conclusory denials of wrongdoing (see Matter of Stephanie F. [Francy Javier A.], 132 A.D.3d 611, 611, 19 N.Y.S.3d 275 [1st Dept. 2015] ; Matter of Shavenon N. [Miledy L.N.], 71 A.D.3d 401, 895 N.Y.S.2d 409 [1st Dept. 2010] ). The record further shows that he willfully failed to appear at the hearing (see Family Ct. Act § 1042 ). In any event, the evidence at the hearing established that the father engaged in multiple incidents of domestic violence against the mother in the presence of the children, including one in which one of the subject children—Mishelys—sustained bruising and a cut lip.
Contrary to the father's contention, his attorney's refusal to participate in the fact-finding hearing in his absence was not ineffective representation, since his attorney's strategic decision preserved his opportunity to move to open the default (see Matter of Landyn M. [Laquanna W.], 145 A.D.3d 520, 43 N.Y.S.3d 318 [1st Dept. 2016] ).
We have considered the father's remaining arguments and find them unavailing.