Opinion
2012-04-10
In re TYIEYANNA L., and Another, Dependent Children Under the Age of Eighteen Years, etc.,Twanya McK., Respondent–Appellant,Coalition for Hispanic Family Services, Petitioner–Respondent.
Andrew J. Baer, New York, for appellant. Law Offices of Raymond L. Colon, New York (Raymond L. Colon of counsel), for respondent.
Andrew J. Baer, New York, for appellant. Law Offices of Raymond L. Colon, New York (Raymond L. Colon of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Marcia Egger of counsel), attorney for the children.
Order, Family Court, New York County (Jody Adams, J.), entered on or about March 8, 2011, which denied respondent mother's motion to vacate orders of disposition, same court and Judge, entered on or about July 14, 2010, upon her default, which, upon findings of permanent neglect, terminated her parental rights to the subject children and committed the custody and guardianship of the children to petitioner agency and the Commissioner of Social Services for the purpose of adoption, unanimously affirmed, without costs.
Respondent failed to demonstrate a reasonable excuse for her default and a meritorious defense to the petition ( see CPLR 5015[a][1] ); Matter of Calvin S., 47 A.D.3d 491, 851 N.Y.S.2d 13 [2008]; Matter of Jones, 128 A.D.2d 403, 512 N.Y.S.2d 689 [1987] ). She submitted an affidavit explaining that she had a severe toothache on the day of the hearing and a letter from her dentist stating that she was in his office on that day and was referred to an oral surgeon. However, she failed to notify her counsel, the court, or the agency in advance that she would not appear at the hearings, although her condition did not prevent her from doing so ( see 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]; Matter of Ciara Lee C. [Lourdes R.], 67 A.D.3d 437, 888 N.Y.S.2d 41 [2009], lv. dismissed 14 N.Y.3d 756, 898 N.Y.S.2d 84, 925 N.E.2d 87 [2010] ).
There is no evidence that respondent completed the programs called for in her plan within the relevant one-year period so as to demonstrate a meritorious defense to the allegations of permanent neglect ( see Matter of Gloria Marie S., 55 A.D.3d 320, 321, 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] ). Her incarceration during that period did not excuse her from the requirement that she realistically plan for her children's future ( see Matter of Jayson M., 177 A.D.2d 396, 576 N.Y.S.2d 243 [1991] ).