Opinion
2011-09-30
In the Matter of LASTANZEA L., Ivanna L., Samya L., Deajah L., and Shaviontae L.Oneida County Department of Social Services, Petitioner–Respondent;Lakesha L., Respondent–Appellant. (Appeal No. 2.)
Appeal from an order of the Family Court, Oneida County (Randal B. Caldwell, J.), entered February 9, 2010 in a proceeding pursuant to Social Services Law § 384–b. The order denied the motion of respondent to vacate a prior order entered upon her default.Peter J. Digiorgio, Jr., Utica, for respondent-appellant.John A. Herbowy, Utica, for petitioner-respondent.John G. Koslosky, Attorney for the Children, Utica, for Lastanzea L., Ivanna L., Samya L., Deajah L., and Shaviontae L.MEMORANDUM:
In appeal No. 1, respondent mother appeals from an order entered upon her default that, inter alia, revoked a suspended judgment and terminated her parental rights with respect to the five children who are the subjects of this proceeding. The mother failed to appear at the hearing on the petition seeking revocation of the suspended judgment and, although her attorney was present at the hearing, he did not participate therein. “[I]n light of her [attorney's] election to stand mute,” the mother's unexplained failure to appear at *923 the hearing constituted a default ( Matter of Miguel M.-R.B., 36 A.D.3d 613, 614, 828 N.Y.S.2d 167, lv. dismissed 8 N.Y.3d 957, 836 N.Y.S.2d 536, 868 N.E.2d 216). We therefore dismiss the appeal from the order in appeal No. 1 ( see Matter of Tiara B. [Appeal No. 2], 64 A.D.3d 1181, 1182, 881 N.Y.S.2d 754).
In appeal No. 2, the mother appeals from an order denying her motion to vacate the order in appeal No. 1 entered upon her default. Family Court properly exercised its discretion in denying the motion. Contrary to the mother's contention, her incarceration at the time of the hearing does not constitute a reasonable excuse for her default because she failed to provide a credible explanation for her failure to advise her attorney, the court or petitioner of her unavailability ( see Matter of Fa'Shon S., 40 A.D.3d 863, 836 N.Y.S.2d 636; Matter of Ashley Marie M., 287 A.D.2d 333, 731 N.Y.S.2d 166). The mother also failed to demonstrate a meritorious defense or to explain her 11–month delay in seeking to vacate the order in appeal No. 1 ( see Matter of Tashona Sharmaine A., 24 A.D.3d 135, 805 N.Y.S.2d 331, lv. denied 6 N.Y.3d 715, 823 N.Y.S.2d 356, 856 N.E.2d 920; Ashley Marie M., 287 A.D.2d at 334, 731 N.Y.S.2d 166).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
SMITH, J.P., CENTRA, CARNI, GREEN, and MARTOCHE, JJ., concur.