Opinion
2012-02-10
In the Matter of KENNETH L.Jefferson County Department of Social Services, Petitioner–Respondent;Michelle B., Respondent–Appellant.
John M. Murphy, Jr., Phoenix, for Respondent–Appellant. Caraccioli & Nelson, PLLC, Watertown (Kevin C. Caraccioli of Counsel), for Petitioner–Respondent.
John M. Murphy, Jr., Phoenix, for Respondent–Appellant. Caraccioli & Nelson, PLLC, Watertown (Kevin C. Caraccioli of Counsel), for Petitioner–Respondent. Susan A. Sovie, Attorney for the Child, Watertown, for Kenneth L.
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND LINDLEY, JJ.
MEMORANDUM:
Respondent mother appeals from an order denying her motion to vacate a prior order entered upon her default that terminated her parental rights with respect to the subject child on the ground of permanent neglect. The mother contends that Family Court erred in reinstating the permanent neglect petition on the ground that there had been a substantial failure of a material condition of her judicial surrender of the child. We conclude that the mother waived that contention, inasmuch as her attorney conceded that the petition may be reinstated ( see generally Matter of Brayanna G., 66 A.D.3d 1375, 891 N.Y.S.2d 565, lv. denied 13 N.Y.3d 714, 2010 WL 92458). Contrary to the further contention of the mother, her attorney's failure to contest reinstatement of the petition does not constitute ineffective assistance of counsel. The mother's attorney “cannot be deemed ineffective for failing to make a motion or response to a motion that is unlikely to be successful” ( Matter of Jamaal NN., 61 A.D.3d 1056, 1058, 878 N.Y.S.2d 205, lv. denied 12 N.Y.3d 711, 2009 WL 1299012) and, here, the court properly granted petitioner's motion to reinstate the petition. We also reject the mother's contention that she was denied effective assistance of counsel based on, inter alia, her attorney's failure to request an adjournment when the mother did not appear at the fact-finding and dispositional hearing. The court delayed the hearing for 45 minutes and, when the mother still failed to appear, her attorney asked to be relieved from his representation of the mother in order to preserve the mother's opportunity to move to vacate any default order entered against her. We conclude that such tactical decision on the part of the mother's attorney does not constitute ineffective assistance of counsel ( see Matter of Geraldine Rose W., 196 A.D.2d 313, 319–320, 609 N.Y.S.2d 324, lv. dismissed 84 N.Y.2d 967, 621 N.Y.S.2d 514, 645 N.E.2d 1213; see generally Matter of Derrick C., 52 A.D.3d 1325, 1326, 859 N.Y.S.2d 855, lv. denied 11 N.Y.3d 705, 866 N.Y.S.2d 609, 896 N.E.2d 95).
Finally, we conclude that the court properly exercised its discretion in denying the mother's motion to vacate the order entered upon her default. Contrary to the mother's contention, her allegation in support of the motion that she missed the hearing because her vehicle broke down and she could not find alternative transportation does not constitute a reasonable excuse for her default because she failed to provide a credible explanation for her failure to advise the court or petitioner of her unavailability ( see Matter of Lastanzea L., 87 A.D.3d 1356, 929 N.Y.S.2d 922). Although the mother alleged that she contacted her attorney, he stated on the record that he did not receive any communication from the mother. The mother also failed to demonstrate a meritorious defense to the petition ( see Matter of Alexis C.R., 71 A.D.3d 1511, 895 N.Y.S.2d 912, lv. dismissed 14 N.Y.3d 922, 905 N.Y.S.2d 125, 931 N.E.2d 94; Matter of Zabrina M., 17 A.D.3d 1132, 794 N.Y.S.2d 255, lv. denied 5 N.Y.3d 710, 803 N.Y.S.2d 31, 836 N.E.2d 1154), and she failed to explain her four-month delay in seeking to vacate the order entered upon her default ( see Lastanzea L., 87 A.D.3d 1356, 929 N.Y.S.2d 922; Matter of Tashona Sharmaine A., 24 A.D.3d 135, 805 N.Y.S.2d 331).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.