Opinion
13733 Dkt. No. B-293/16 Case No. 2020-01750
05-04-2021
In the MATTER OF DARRYL H.W., Jr., A Child Under Eighteen Years of Age, etc., Angelina P., Respondent–Appellant, v. Rising Ground, formerly known as Leake & Watts Services, Inc., Petitioner–Respondent.
Bruce A. Young, New York, for appellant. Rosin Steinhagen Mendel PLLC, New York (Marion C. Perry of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Riti P. Singh of counsel), attorney for the child.
Bruce A. Young, New York, for appellant.
Rosin Steinhagen Mendel PLLC, New York (Marion C. Perry of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Riti P. Singh of counsel), attorney for the child.
Gische, J.P., Mazzarelli, Oing, Gonza´lez, JJ.
Order, Family Court, Bronx County (Keith E. Brown, J.), entered on or about January 23, 2020, which denied respondent mother's motion to vacate an order of disposition, same court (Valerie A. Pels, J.), entered on or about June 11, 2019, which, upon her default in appearing at the dispositional hearing, terminated her parental rights to the subject child, and committed custody and guardianship of the child to petitioner agency and the Commissioner for the Administration for Children's Services for the purpose of adoption, unanimously affirmed, without costs.
The court providently exercised its discretion in denying the mother's motion to vacate the dispositional order upon her default, since she failed to demonstrate a reasonable excuse for her failure to appear at the hearing and a potentially meritorious defense (see CPLR 5015[a][1] ; Matter of Amirah Nicole A. [Tamika R.], 73 A.D.3d 428, 428–429, 901 N.Y.S.2d 178 [1st Dept. 2010], lv dismissed 15 N.Y.3d 766, 906 N.Y.S.2d 810, 933 N.E.2d 209 [2010] ). Any alleged confusion on the mother's part about the time and date of the proceedings was not reasonable since she was present in court when the date was selected and was reminded by her attorney of the upcoming court appearance less than a week prior (see Matter of Rickelme Alfredo B. [Ricardo Alfred B.], 132 A.D.3d 490, 490, 19 N.Y.S.3d 20 [1st Dept. 2015] ; Matter of Mariah A. [Hugo A.], 109 A.D.3d 751, 752, 973 N.Y.S.2d 15 [1st Dept. 2013], lv dismissed 22 N.Y.3d 994, 979 N.Y.S.2d 558, 2 N.E.3d 926 [2013] ). Additionally, the mother failed to substantiate that her employment prevented her from attending the hearing (see Matter of Ronald Kendell G. [Janet G.], 169 A.D.3d 558, 559, 95 N.Y.S.3d 77 [1st Dept. 2019], lv dismissed 33 N.Y.3d 1042, 103 N.Y.S.3d 15, 126 N.E.3d 1055 [2019] ). There was no evidence presented that she was unable to appear due to her employment or that she notified her employer about the court date. Finally, the mother had a history of failing to appear at critical points during the proceedings, such as the 2014 finding of neglect after inquest, and waited five months before filing the motion to vacate (see Matter of Miguel L. v. Ashley J.L., 177 A.D.3d 476, 477, 114 N.Y.S.3d 291 [1st Dept. 2019] ).
Since the mother failed to proffer a reasonable excuse for her default, we need not determine whether she proffered a meritorious defense, which we would, in any event, find that she failed to do.
We have considered the parties' remaining contentions and find them either unreviewable herein, unpreserved and/or unavailing.