Opinion
2017–00420 (Docket Nos. B–1201–14 B–1202–14)
05-09-2018
In the MATTER OF ELYSIA R.M. (Anonymous). New York Foundling Hospital, petitioner-respondent; v. Shamaya M. (Anonymous), appellant, et al., respondent. (Proceeding No. 1) In the Matter of Richard M. (Anonymous). New York Foundling Hospital, petitioner-respondent; v. Shamaya M. (Anonymous), appellant, et al., respondent. (Proceeding No. 2)
Rhonda R. Weir, Brooklyn, NY, for appellant. Salvatore C. Adamo, New York, NY, attorney for the children.
Rhonda R. Weir, Brooklyn, NY, for appellant.
Salvatore C. Adamo, New York, NY, attorney for the children.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, LEONARD B. AUSTIN, HECTOR D. LASALLE, JJ.
DECISION & ORDER
In two related proceedings pursuant to Social Services Law § 384–b, the mother appeals from an order of the Family Court, Richmond County (Karen Wolff, J.), dated December 15, 2016. The order denied the mother's motion, inter alia, to vacate an order of fact-finding and disposition of the same court dated November 16, 2015, which, upon her default, terminated her parental rights on the ground of permanent neglect.
ORDERED that the order dated December 15, 2016, is affirmed, without costs or disbursements.
In March 2014, the New York Foundling Hospital filed petitions alleging that the mother had permanently neglected her children, Elysia R.M. and Richard M. (hereinafter together the subject children). On October 9, 2015, the Family Court held a fact-finding and dispositional hearing at which the mother failed to appear. In an order of fact-finding and disposition dated November 16, 2015, entered upon the mother's default, the court found that the mother had permanently neglected the subject children, terminated the mother's parental rights, and freed the subject children for adoption. In October 2016, the mother moved to vacate the order of fact-finding and disposition, and to restore the matter to the calendar for a new hearing. By order dated December 15, 2016, the court denied the motion. The mother appeals, contending that she had a reasonable excuse for her failure to appear at the hearing, and a meritorious defense to the allegations of permanent neglect.
The determination of whether to relieve a party of a default is within the sound discretion of the Family Court (see Matter of Clarence D.H. [Fidelina A.] , 150 A.D.3d 1113, 1114, 52 N.Y.S.3d 667 ; Matter of Isabella R.W. [Jessica W.] , 142 A.D.3d 503, 504, 36 N.Y.S.3d 205 ; Matter of Kimberly S.K. [Kimberly K.] , 138 A.D.3d 853, 854, 29 N.Y.S.3d 505 ; Matter of Stephen Daniel A. [Sandra M.–A.] , 122 A.D.3d 837, 839, 995 N.Y.S.2d 511 ; Matter of Mia P.R.D. [David D.] , 113 A.D.3d 679, 680, 979 N.Y.S.2d 111 ). A parent seeking to vacate an order entered upon his or her default in a termination of parental rights proceeding must establish that there was a reasonable excuse for the default and a potentially meritorious defense to the relief sought in the petition (see CPLR 5015[a][1] ; Matter of Clarence D.H. [Fidelina A.] , 150 A.D.3d at 1114, 52 N.Y.S.3d 667; Matter of Isabella R. W. [Jessica W.] , 142 A.D.3d at 504, 36 N.Y.S.3d 205; Matter of Stephen Daniel A. [Sandra M.–A.] , 122 A.D.3d at 839, 995 N.Y.S.2d 511 ; Matter of Mia P.R.D. [David D.] , 113 A.D.3d at 680, 979 N.Y.S.2d 111 ; Matter of Daniel Marcus Y. [Marilyn Y.] , 77 A.D.3d 843, 843, 909 N.Y.S.2d 378 ).
Here, the Family Court providently exercised its discretion in denying the mother's motion, as she failed to establish a reasonable excuse for her failure to appear at the hearing. Although the mother claimed that she was unable to attend the hearing due to transit delays, she submitted no documentary evidence to substantiate her claim in her affidavit (see Matter ofJoshua E.R. [Yolaine R.] , 123 A.D.3d 723, 725, 997 N.Y.S.2d 739 ; Matter of Kenneth S. v. Bethzaida P. , 95 A.D.3d 1022, 1023, 943 N.Y.S.2d 762 ; Matter of Arianna–Samantha Lady Melissa S. [Carissa S.] , 134 A.D.3d 582, 583, 23 N.Y.S.3d 31 ; Matter of Chelsea Antoinette A. [Anna S.] , 88 A.D.3d 627, 627, 931 N.Y.S.2d 503 ). Additionally, we note that the conclusory assertions in the mother's affidavit were insufficient to establish the existence of a potentially meritorious defense to the allegations of permanent neglect (see Matter of Raphanello J.N.L.L. [Rasheem L.] , 119 A.D.3d 580, 580–581, 989 N.Y.S.2d 131 ; Matter of Jenna C. [Omisa C.] , 81 A.D.3d 941, 942, 917 N.Y.S.2d 650 ; Matter of Anthony Christopher G. , 18 A.D.3d 469, 470, 794 N.Y.S.2d 123 ; Matter of Vanessa F. , 9 A.D.3d 464, 779 N.Y.S.2d 917 ).
Accordingly, the Family Court providently exercised its discretion in denying the mother's motion to vacate the order of fact-finding and disposition entered upon her default, and to restore the matter to the calendar for a new hearing.
MASTRO, J.P., RIVERA, AUSTIN and LASALLE, JJ., concur.