Opinion
8473
02-21-2019
IN RE RONALD KENDELL G., III, and Another, Children Under the Age of Eighteen Years, etc., Janet G., Respondent–Appellant, v. Saint Dominic's Family Services, Petitioner–Respondent.
Geoffrey P. Berman, Larchmont, for appellant. Warren & Warren, P.C., Brooklyn (Ira L. Eras of counsel), for respondent. Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), attorney for the children.
Geoffrey P. Berman, Larchmont, for appellant.
Warren & Warren, P.C., Brooklyn (Ira L. Eras of counsel), for respondent.
Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), attorney for the children.
Friedman, J.P., Gische, Kapnick, Gesmer, Kern, JJ.
The court providently exercised its discretion in denying the mother's motion to vacate her default because she failed to substantiate her claim that employment in Pennsylvania prevented her from timely attending the hearing (see Matter of Derrick T., 261 A.D.2d 108, 687 N.Y.S.2d 260 [1st Dept. 1999] ). Notwithstanding that the day before the hearing both the mother's counsel and the agency warned her that she must appear, the mother failed to contact the court or counsel to advise them that while she intended to appear, she would be late (see Matter of Ilyas Zaire A.-R. [Habiba A.-R.], 104 A.D.3d 512, 961 N.Y.S.2d 137 [1st Dept. 2013], lv denied 21 N.Y.3d 859, 970 N.Y.S.2d 748, 992 N.E.2d 1093 [2013] ). The mother's excuse was also unreasonable in light of her pattern of nonappearances ( id. at 512–513, 961 N.Y.S.2d 137 ).
The mother also failed to establish a meritorious defense to the allegations of permanent neglect. Despite the mother's claims to the contrary, the agency exercised diligent efforts to reunite her with the children (see Matter of Janaya T. [Sarah T.], 165 A.D.3d 566, 87 N.Y.S.3d 14 [1st Dept. 2018] ). Although the mother participated in certain services, there was no change in her ability to care for the children (see Matter of Tyshawn S. [Shana S.], 143 A.D.3d 990, 39 N.Y.S.3d 508 [2d Dept. 2016] ).
Furthermore, the preponderance of the evidence supported the finding that termination of the mother's parental rights was in the children's best interest. The record shows that the foster mother, who is also the children's paternal grandmother, has cared for the children for several years and tends to their special needs (see Matter of Angel P., 44 A.D.3d 448, 449, 843 N.Y.S.2d 288 [1st Dept. 2007] ).