Opinion
523 CAF 20-00523
06-11-2021
In the MATTER OF MALACHI S., Also Known as Malachi W. Monroe County Department of Human Services, Petitioner-Respondent; v. Michael W., Respondent-Appellant. (Appeal No. 1.)
PAUL B. WATKINS, FAIRPORT, FOR RESPONDENT-APPELLANT. JOHN P. BRINGEWATT, COUNTY ATTORNEY, ROCHESTER (CAROL L. EISENMAN OF COUNSEL), FOR PETITIONER-RESPONDENT. ELLA MARSHALL, ROCHESTER, ATTORNEY FOR THE CHILD.
PAUL B. WATKINS, FAIRPORT, FOR RESPONDENT-APPELLANT.
JOHN P. BRINGEWATT, COUNTY ATTORNEY, ROCHESTER (CAROL L. EISENMAN OF COUNSEL), FOR PETITIONER-RESPONDENT.
ELLA MARSHALL, ROCHESTER, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., LINDLEY, TROUTMAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In appeal No. 1, respondent father appeals from an order denying his motion to vacate the default order in appeal No. 2. In appeal No. 2, the father appeals from a default order that, inter alia, revoked a suspended judgment and terminated his parental rights with respect to the child who is the subject of this proceeding.
Addressing first appeal No. 2, we note that the father failed to appear at the hearing on petitioner's application by order to show cause seeking to revoke the suspended judgment and, although his attorney was present at the hearing, the attorney did not participate. Under the circumstances, we conclude that Family Court properly determined that the father's unexplained failure to appear constituted a default (see Matter of Tiara B. [appeal No. 2], 64 A.D.3d 1181, 1181-1182, 881 N.Y.S.2d 754 [4th Dept. 2009] ; see also Matter of Lastanzea L. [Lakesha L.] , 87 A.D.3d 1356, 1356, 929 N.Y.S.2d 922 [4th Dept. 2011], lv denied in part and dismissed in part 18 N.Y.3d 854, 938 N.Y.S.2d 844, 962 N.E.2d 267 [2011] ). We therefore dismiss the appeal from the order in appeal No. 2 (see Tiara B. , 64 A.D.3d at 1182, 881 N.Y.S.2d 754 ).
With respect to appeal No. 1, it is well settled that a parent seeking to vacate a default order revoking a suspended judgment and terminating his or her parental rights must demonstrate a reasonable excuse for the default and a meritorious defense to the underlying allegations (see Lastanzea L. , 87 A.D.3d at 1356, 929 N.Y.S.2d 922 ; Tiara B. , 64 A.D.3d at 1182, 881 N.Y.S.2d 754 ). We review a court order resolving a motion to vacate a default order using either the abuse of discretion standard (see Tiara B. , 64 A.D.3d at 1182, 881 N.Y.S.2d 754 ) or the improvident exercise of discretion standard (see Matter of Kimberly S.K. [Kimberly K.] , 138 A.D.3d 853, 854, 29 N.Y.S.3d 505 [2d Dept. 2016] ; Shouse v. Lyons , 4 A.D.3d 821, 823, 772 N.Y.S.2d 177 [4th Dept. 2004] ). Here, we conclude that the court properly exercised its discretion in denying the father's motion.
Although " ‘[a] parent has a right to be heard on matters concerning [his or] her child and the parent's rights are not to be disregarded absent a convincing showing of waiver ’ " ( Matter of Dominique L.B. , 231 A.D.2d 948, 948, 647 N.Y.S.2d 639 [4th Dept. 1996] [emphasis added]), " ‘[a] parent's right to be present for fact-finding and dispositional hearings in termination cases is not absolute,’ " and " ‘[t]he child whose guardianship and custody is at stake also has a fundamental right to a prompt and permanent adjudication’ " ( Matter of Dakota H. [Danielle F.] , 126 A.D.3d 1313, 1315, 5 N.Y.S.3d 742 [4th Dept. 2015], lv denied 25 NY3d 909, 2015 WL 3605123, 2015 WL 3605116 [2015]).
Contrary to the father's contention, he was notified of the scheduled hearing date, and we conclude that he willfully failed to appear and thereby waived his appearance (see Matter of Elizabeth T. [Leonard T.] , 3 A.D.3d 751, 753, 770 N.Y.S.2d 804 [3d Dept. 2004] ; cf. Matter of Kendra M. , 175 A.D.2d 657, 658, 572 N.Y.S.2d 583 [4th Dept. 1991] ). "By willfully failing to appear on dates for which the court provided adequate notice, [the father] forfeited any right he had to be present at the hearing" ( Elizabeth T. , 3 A.D.3d at 753, 770 N.Y.S.2d 804 ), regardless of whether he was warned that the hearing would proceed in his absence (see Matter of Monroe County Support Collection Unit v. Wills , 19 A.D.3d 1019, 1019, 798 N.Y.S.2d 273 [4th Dept. 2005], lv denied 5 N.Y.3d 710, 804 N.Y.S.2d 34, 837 N.E.2d 733 [2005] ; Matter of Geraldine Rose W. , 196 A.D.2d 313, 316-318, 609 N.Y.S.2d 324 [2d Dept. 1994], lv dismissed 84 N.Y.2d 967, 621 N.Y.S.2d 514, 645 N.E.2d 1213 [1994] ).
In any event, the father failed to demonstrate a meritorious defense in support of his motion to vacate the default. It is well settled that, "[i]f [petitioner] establishes by a preponderance of the evidence that there has been noncompliance with any of the terms of the suspended judgment, the court may revoke the suspended judgment and terminate parental rights" ( Matter of Keyon M. [Kenyetta M.] , 85 A.D.3d 1560, 1561, 924 N.Y.S.2d 879 [4th Dept. 2011], lv denied 17 N.Y.3d 709, 2011 WL 4089861 [2011] [emphasis added and internal quotation marks omitted]; see Family Ct Act § 633 [f] ; Matter of Savanna G. [Dayelle M.] , 118 A.D.3d 1482, 1483, 988 N.Y.S.2d 812 [4th Dept. 2014] ). Although the court misstated a few facts in its findings, there was ample evidence at the hearing that the father violated multiple terms of the suspended judgment and that it was in the child's best interests to terminate the father's parental rights. The father on his motion did not establish otherwise (see Tiara B. , 64 A.D.3d at 1182, 881 N.Y.S.2d 754 ; see also Lastanzea L. , 87 A.D.3d at 1356, 929 N.Y.S.2d 922 ).