Opinion
698 CAF 14-00273
07-02-2015
In the Matter of ARKADIAN S., Eden S., and Elysium S. Cayuga County Department of Health and Human Services, Petitioner–Respondent; Crystal S. and Joshua S., Respondents–Appellants.
Cynthia B. Brennan, Auburn, for Respondent–Appellant Crystal S. D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth Dev. Moeller of Counsel), for Respondent–Appellant Joshua S. Frederick R. Westphal, County Attorney, Auburn (Samuel P. Giacona of Counsel), for Petitioner–Respondent. James A. Leone, Attorney for the Children, Auburn.
Cynthia B. Brennan, Auburn, for Respondent–Appellant Crystal S.
D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth Dev. Moeller of Counsel), for Respondent–Appellant Joshua S.
Frederick R. Westphal, County Attorney, Auburn (Samuel P. Giacona of Counsel), for Petitioner–Respondent.
James A. Leone, Attorney for the Children, Auburn.
PRESENT: SCUDDER, P.J., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.
Opinion
MEMORANDUM: Respondents appeal from an order denying respondent mother's motion pursuant to Family Court Act § 1061 and CPLR 5015(a)(2) and (3) to vacate various prior orders that limited her reunification and contact with the subject children, including a June 10, 2013 order modifying a permanency planning goal, a 2012 order suspending her parenting time with the subject children, and an October 27, 2010 order issued upon an application for temporary removal of the children. She also sought to vacate an August 30, 2012 order finding that respondent father abused and derivatively neglected the subject children. We note at the outset that the father is not an aggrieved party and therefore lacks standing to appeal inasmuch as he did not formally join in the mother's motion to vacate (see Matter of Abraham S., 291 A.D.2d 452, 452, 737 N.Y.S.2d 542 ; Matter of George O., 115 Misc.2d 782, 783 n. 2, 455 N.Y.S.2d 146 ). Thus, his appeal must be dismissed (see CPLR 5511 ; Matter of Cooper v. Cooper, 74 A.D.3d 1868, 1868–1869, 901 N.Y.S.2d 887 ).
Contrary to the mother's contention, we conclude that Family Court did not abuse its discretion in denying her motion without a hearing (see Matter of Carrie F. v. David PP., 34 A.D.3d 1108, 1109, 825 N.Y.S.2d 791 ). The mother failed to make an “ ‘evidentiary showing sufficient to warrant a hearing’ ” on the isse of good cause to vacate the prior orders (Matter of Melissa FF., 285 A.D.2d 682, 684, 726 N.Y.S.2d 800 ; see Matter of Kole HH. [Thomas HH.], 84 A.D.3d 1518, 1519, 923 N.Y.S.2d 760 ; Matter of Cadejah AA., 34 A.D.3d 1141, 1142, 825 N.Y.S.2d 313 ). Indeed, her motion is based on a single, misinterpreted phrase in the September 2, 2011 progress note.
To the extent that the mother purports to appeal directly from the 2012 order suspending her parenting time with the subject children, contending that her due process rights were violated by that order, we note that her contention is not properly before us inasmuch as she failed to take a timely appeal from that order (see Family Ct. Act § 1113 ).
We do not consider the mother's contention that the father's due process rights were violated and thus that the court should have granted that part of her motion seeking to vacate the order finding that he abused and derivatively neglected the subject children. “[I]t is well established that third parties may not assert the alleged violations of another's constitutional rights” (Matter of Harriet II. v. Alex LL., 292 A.D.2d 92, 95, 740 N.Y.S.2d 162 ; see Forward v. Webster Cent. Sch. Dist., 136 A.D.2d 277, 280, 526 N.Y.S.2d 870, appeal dismissed 72 N.Y.2d 908, 532 N.Y.S.2d 756, 528 N.E.2d 1229, reconsideration denied 73 N.Y.2d 740, 535 N.Y.S.2d 593, 532 N.E.2d 99 ). We note in any event that the mother raises that contention for the first time on appeal and thus failed to preserve it for our review (see Matter of Emerald L.C. [David C.], 101 A.D.3d 1679, 1680, 958 N.Y.S.2d 242 ; Matter of York v. Zullich, 89 A.D.3d 1447, 1448, 932 N.Y.S.2d 637 ).
Finally, we reject the mother's contention that she is entitled to vacatur of the orders pursuant to CPLR 5015(a)(2) and (3). Although the Attorney for the Children correctly notes that the mother failed to include those provisions as a ground for relief in her notice of motion, we disregard this technical deficiency inasmuch as she included those grounds for relief in her attorney's supporting affirmation (see CPLR 2001 ; Matter of LiMandri, 171 A.D.2d 747, 747, 567 N.Y.S.2d 303 ). In any event, the mother is not entitled to relief pursuant to CPLR 5015(a)(2). She failed to show that the September 2, 2011 progress note was not disclosed during discovery in the underlying abuse and neglect proceeding against father, and thus the evidence was not newly discovered (see Matter of Mark D. v. Marion M., 12 A.D.3d 1082, 1083, 785 N.Y.S.2d 204 ; Kerner v. Kerner [Appeal No. 5], 262 A.D.2d 1082, 1082, 691 N.Y.S.2d 847, lv. dismissed in part and denied in part 94 N.Y.2d 873, 705 N.Y.S.2d 3, 726 N.E.2d 480 ). Additionally, the progress note “ would not likely have produced a different result” in light of the evidence that the father sexually abused one of the subject children (Matter of Latasha M., 205 A.D.2d 457, 457, 613 N.Y.S.2d 887 ). The mother is not entitled to relief pursuant to CPLR 5015(a)(3) because she “failed to meet [her] burden of establishing the existence of fraud, misrepresentation or other misconduct of an adverse party” (Matter of Shere L. v. Odell H., 303 A.D.2d 1023, 1024, 756 N.Y.S.2d 824 ; see Rappold v. Wagner [Appeal No. 4], 244 A.D.2d 856, 856, 668 N.Y.S.2d 111 ).
It is hereby ORDERED that said appeal by respondent Joshua S. is unanimously dismissed and the order is affirmed without costs.