Opinion
2017–04716 Docket Nos. B–4112–15, B–4113–15, B–4114–15
06-13-2018
In the Matter of REYNA M. U.–A. (Anonymous). Children's Aid Society, petitioner-respondent, et al., petitioner; v. ISAAC U. (Anonymous), appellant, et al., respondent. (Proceeding No. 1) In the Matter of Kimberly U. (Anonymous). Children's Aid Society, petitioner-respondent, et al., petitioner; v. Isaac U. (Anonymous), appellant, et al., respondent. (Proceeding No. 2) In the Matter of Anita J. U. (Anonymous). Children's Aid Society, petitioner-respondent, et al., petitioner; v. Isaac U. (Anonymous), appellant, et al., respondent. (Proceeding No. 3)
Mitchell P. Newman, Staten Island, N.Y., for appellant. Rosin Steinhagen Mendel, New York, N.Y. (Douglas H. Reiniger of counsel), for petitioner-respondent. Seymour W. James, Jr., New York, N.Y. (Dawne A. Mitchell and Patricia Colella of counsel), attorney for the children.
Mitchell P. Newman, Staten Island, N.Y., for appellant.
Rosin Steinhagen Mendel, New York, N.Y. (Douglas H. Reiniger of counsel), for petitioner-respondent.
Seymour W. James, Jr., New York, N.Y. (Dawne A. Mitchell and Patricia Colella of counsel), attorney for the children.
SHERI S. ROMAN, J.P., SANDRA L. SGROI, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER
In three related proceedings pursuant to Social Services Law § 384–b, the father appeals from an order of the Family Court, Richmond County (Arnold Lim, J.), dated March 21, 2017. The order denied the father's motion to vacate three orders of fact-finding and disposition of the same court (one as to each child), all dated October 24, 2016, which, upon his failure to appear at a fact-finding and dispositional hearing, and after a fact-finding and dispositional inquest, terminated his parental rights on the ground of permanent neglect, and transferred guardianship and custody of the subject children to the Children's Aid Society and the Commissioner of the Administration for Children's Services for the purpose of adoption.
ORDERED that the order dated March 21, 2017, is affirmed, without costs or disbursements.
In September 2015 the petitioners commenced these three related proceedings pursuant to Social Services Law § 384–b, inter alia, to terminate the father's parental rights with respect to the three subject children on the ground of permanent neglect. The father failed to appear at a fact-finding hearing scheduled for September 22, 2016. The father was found to be in default, and the Family Court conducted a fact-finding and dispositional inquest. In three orders of fact-finding and disposition (one as to each child), all dated October 24, 2016, the court, inter alia, determined that the children were permanently neglected by the father, terminated the father's parental rights, and transferred guardianship and custody of the children to the petitioners for the purpose of adoption. In March 2017, the father moved to vacate his default. In the order appealed from, the court denied the father's motion, and the father appeals.
"The determination of whether to relieve a party of a default is within the sound discretion of the Family Court" ( Matter of Brandon G. [Tiynia M.], 155 A.D.3d 626, 626, 63 N.Y.S.3d 484 ; 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, 142 A.D.3d 503 ). "A parent seeking to vacate an order entered upon his or her default in a termination of parental rights proceeding must establish a reasonable excuse for the default, as well as a potentially meritorious defense to the relief sought in the petition" (Matter of Johanna B. [Grace B.], 157 A.D.3d 668, 669, 66 N.Y.S.3d 630 ; see CPLR 5015[a][1] ; Matter of Brandon G. [Tiynia M.], 155 A.D.3d at 626–627, 63 N.Y.S.3d 854; Matter of Clarence D.H. [Fidelina A.], 150 A.D.3d at 1114, 55 N.Y.S.3d 376).
Here, the father, who was present in court when the hearing was scheduled, failed to provide a reasonable excuse for his default (see Matter of Dominique Beyonce R. [Maria Isabel R.], 82 A.D.3d 984, 985, 918 N.Y.S.2d 577 ; Matter of Nicholas S., 46 A.D.3d 830, 831, 848 N.Y.S.2d 311 ; Matter of Porscha Monique J., 21 A.D.3d 415, 416, 799 N.Y.S.2d 780 ). Furthermore, the father offered no explanation as to why he waited until March 2017 to move to vacate his default (see Matter of Devon Dupree F., 298 A.D.2d 103, 747 N.Y.S.2d 501 ). In any event, the father failed to set forth a potentially meritorious defense to the allegations in the petition (see Matter of Qwin L.X.P. [Leonard P.], 158 A.D.3d 698, 699, 68 N.Y.S.3d 741 ; Matter of Dominique Beyonce R. [Maria Isabel R.], 82 A.D.3d at 985–986, 918 N.Y.S.2d 577 ).
Accordingly, we agree with the Family Court's determination denying the father's motion to vacate the orders of fact-finding and disposition entered upon his default.
ROMAN, J.P., SGROI, MALTESE and LASALLE, JJ., concur.