Opinion
2014-05-28
In the Matter of LATISHA T'KEYAH J. (Anonymous). Edwin Gould Services for Children and Families, petitioner-respondent; Monie J. (Anonymous), appellant, et al., respondent.
Larry S. Bachner, Jamaica, N.Y., for appellant. John R. Eyerman, New York, N.Y., for petitioner-respondent.
Larry S. Bachner, Jamaica, N.Y., for appellant. John R. Eyerman, New York, N.Y., for petitioner-respondent.
Scott A. Rosenberg, New York, N.Y. (Tamara A. Steckler and Marcia Egger of counsel), attorney for the child.
PETER B. SKELOS, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and HECTOR D. LASALLE, JJ.
In a proceeding pursuant to Social Services Law § 384–b to terminate parental rights on the ground of, inter alia, permanent neglect, the father appeals, as limited by his brief, from so much of an order of fact-finding and disposition of the Family Court, Queens County (Salnitro, J.), dated March 6, 2012, as, upon an order of the same court dated January 26, 2012, denying his motion to vacate his default in appearing at the fact-finding and dispositional hearings, among other things, terminated his parental rights and transferred custody and guardianship of the subject child to the Commissioner of Social Services of the City of New York and Edwin Gould Services for Children and Families for the purpose of adoption.
ORDERED that on the Court's own motion, the notice of appeal from the order dated January 26, 2012, is deemed to be a premature notice of appeal from the order of fact-finding and disposition ( seeCPLR 5520[c] ); and it is further,
ORDERED that the appeal from so much of the order of fact-finding and disposition as terminated the father's parental rights and transferred custody and guardianship of the child to the Commissioner of Social Services of the City of New York and Edwin Gould Services for Children and Families for the purpose of adoption is dismissed as academic, without costs or disbursements; and it is further,
ORDERED that the order of fact-finding and disposition is affirmed insofar as reviewed, without costs or disbursements.
The appeal from so much of the order of fact-finding and disposition as terminated the father's parental rights and transferred custody of the subject child must be dismissed as academic, since the child has since reached the age of 18 ( see Matter of Mia P.R.D. [David D.], 113 A.D.3d 679, 680, 979 N.Y.S.2d 111;Matter of Shamika K.L.N. [Melvin S.L.], 101 A.D.3d 729, 730, 955 N.Y.S.2d 623;Matter of Teshana Tracey T.[Janet T.], 71 A.D.3d 1032, 1033, 896 N.Y.S.2d 470). Nevertheless, the father's challenge to the finding of the Family Court that he permanently neglected the child, which was made in an order entered upon his failure to appear at the fact-finding and dispositional hearings, is not academic, since a finding of permanent neglect constitutes a permanent and significant stigma that might indirectly affect the father's status in future proceedings ( see Matter of Mia P.R.D. [David D.], 113 A.D.3d at 680, 979 N.Y.S.2d 111;Matter of Shamika K.L.N. [Melvin S.L.], 101 A.D.3d at 730, 955 N.Y.S.2d 623;Matter of Dariana K.C. [Katherine M.], 99 A.D.3d 899, 900, 952 N.Y.S.2d 589).
The Family Court properly denied that branch of the father's motion which was to vacate his default in appearing at the fact-finding and dispositional hearings, and the finding of permanent neglect made upon those defaults. The father's contention that his failure to appear at the fact-finding and dispositional hearings amounted to something less than a default is not properly before this Court, since he did not raise it in the Family Court ( see Matter of Best v. Hinds, 113 A.D.3d 676, 978 N.Y.S.2d 688). In any event, the contention is without merit. The Family Court properly determined that the father's failure to appear constituted a default, and thereupon properly proceeded by inquest ( see Matter of Jaquan Tieran B. [Latoya B.], 105 A.D.3d 498, 499, 963 N.Y.S.2d 190;Matter of Joseph N., 45 A.D.3d 849, 846 N.Y.S.2d 359;Matter of Geraldine Rose W., 196 A.D.2d 313, 316, 609 N.Y.S.2d 324;cf. Matter of Abdul C., 200 A.D.2d 356, 357–358, 606 N.Y.S.2d 178;Matter of Kendra M., 175 A.D.2d 657, 658, 572 N.Y.S.2d 583).
Since the father was properly held in default, to vacate the order entered upon his default in this proceeding for the termination of his parental rights, he was obligated to establish that there was a reasonable excuse for the default and a potentially meritorious defense to the relief sought in the petition ( seeCPLR 5015[a][1]; Matter of Mia P.R.D. [David D.], 113 A.D.3d at 680, 979 N.Y.S.2d 111;Matter of Annette J.S.J. [Rebecca F.], 106 A.D.3d 1087, 1087, 965 N.Y.S.2d 613;Matter of Daniel Marcus Y. [Marilyn Y.], 77 A.D.3d 843, 843, 909 N.Y.S.2d 378). “The determination of whether to relieve a party of a default is within the sound discretion of the Family Court” (Matter of Mia P.R.D. [David D.], 113 A.D.3d at 680, 979 N.Y.S.2d 111 [internal quotation marks omitted]; see Matter of Annette J.S.J. [Rebecca F.], 106 A.D.3d at 1088, 965 N.Y.S.2d 613;Matter of Martique S.C. [Shakira C.], 101 A.D.3d 1116, 1116, 956 N.Y.S.2d 192).
Here, the father presented neither a reasonable excuse for his failure to appear at the fact-finding and dispositional hearings ( see Matter of Samantha B. [Arthur Eugene S.], 72 A.D.3d 682, 683, 897 N.Y.S.2d 915; Matter of Viergela A., 40 A.D.3d 630, 631–632, 835 N.Y.S.2d 373;Matter of Joosten v. Joosten, 32 A.D.3d 1030, 1030, 820 N.Y.S.2d 899;Matter of Coates v. Lee, 32 A.D.3d 539, 539, 819 N.Y.S.2d 837;Matter of Danielle R., 239 A.D.2d 305, 305, 658 N.Y.S.2d 857), nor a potentially meritorious defense to the allegation of permanent neglect ( see Matter of Jenna C. [Omisa C.], 81 A.D.3d 941, 942, 917 N.Y.S.2d 650;Matter of Amirah Nicole A. [Tamika R.], 73 A.D.3d 428, 429, 901 N.Y.S.2d 178;Matter of Kevin Donnell E., 288 A.D.2d 39, 39, 732 N.Y.S.2d 404;Matter of Viergela A., 40 A.D.3d at 632, 835 N.Y.S.2d 373). The father is currently serving an indeterminate term of imprisonment in connection with his conviction of a felony. The father suggested only unrealistic and unsuitable alternatives to foster care for the duration of the term of imprisonment, and these suggestions did not amount to planning for the child's future ( see Matter of Gregory B., 74 N.Y.2d 77, 90, 544 N.Y.S.2d 535, 542 N.E.2d 1052;Matter of Baby Girl C. [Kevin S.], 1 A.D.3d 593, 594, 767 N.Y.S.2d 462).
The father's due process claim is without merit ( see Matter of Vanessa F., 9 A.D.3d 464, 464–465, 779 N.Y.S.2d 917).