Opinion
2012-01-24
In re Evan MATTHEW A., a Dependent Child Under 18 Years of Age, etc.,Jocelyn Yvette A., Respondent–Appellant,New Alternatives for Children, Petitioner–Respondent.
Andrew J. Baer, New York, for appellant. Law Offices of James M. Ambramson, PLLC, New York (Dawn M. Orsatti of counsel), for respondent.
Andrew J. Baer, New York, for appellant. Law Offices of James M. Ambramson, PLLC, New York (Dawn M. Orsatti of counsel), for respondent.
TOM, J.P., FRIEDMAN, DeGRASSE, RICHTER, MANZANET–DANIELS, JJ.
Order, Family Court, Bronx County (Carol R. Sherman, J.), entered on or about September 28, 2010, which denied respondent mother's motion to vacate an order, same court and Justice, entered on or about August 18, 2009, which upon her default in appearing at the fact-finding and dispositional hearings, found that she had neglected the subject child, terminated her parental rights and committed the custody and guardianship of the child to petitioner agency and the Commissioner of the Administration for Children's Services for the purpose of adoption, unanimously affirmed, without costs.
To vacate a Family Court's order issued on default, upon failure to appear at either a fact-finding or dispositional hearing, the movant must establish both a reasonable excuse for the default and a meritorious defense to the allegations asserted ( see CPLR 5015[a][1]; Matter of Amirah Nicole A. [Tamika R.], 73 A.D.3d 428, 901 N.Y.S.2d 178 [2010], lv. dismissed 15 N.Y.3d 766, 906 N.Y.S.2d 810, 933 N.E.2d 209 [2010] ). Respondent's purported excuse of illness was properly rejected since she failed to provide any documentation to substantiate her claim, and did not explain why she was unable to contact either the court or her attorney regarding her inability to attend the hearings of which she had notice ( see Matter of Gloria Marie S., 55 A.D.3d 320, 865 N.Y.S.2d 68 [2008], lv. dismissed 11 N.Y.3d 909, 873 N.Y.S.2d 523, 901 N.E.2d 1275 [2009] ).
Moreover, respondent did not provide a meritorious defense to the charges of permanent neglect. She proffered only a general claim to have been engaged in her service plan and failed to provide any details or documentation ( see Matter of Christopher James A. (Anne Elizabeth Pierre L.), 90 A.D.3d 515, 935 N.Y.S.2d 16 [2011] ). It is undisputed that during the applicable time period, respondent never completed any aspects of her service plan. In addition, respondent never challenged the finding that she failed to consistently visit with the child, which in and of itself, constituted permanent neglect ( see Matter of Aisha C., 58 A.D.3d 471, 871 N.Y.S.2d 112 [2009], lv. denied 12 N.Y.3d 706, 879 N.Y.S.2d 53, 906 N.E.2d 1087 [2009] ).