| Matter of Bibianamiet L.-M. (Miledy L.N.) |
| 2010 NY Slip Op 01683 [71 AD3d 402] |
| March 2, 2010 |
| Appellate Division, First Department |
| In the Matter of Bibianamiet L.-M. and Another, Infants. MiledyL.N. et al., Appellants; Cardinal McCloskey Services, Respondent. |
—[*1] David M. Shapiro, Bronx, for Francisco N., appellant. Rosin Steinhagen Mendel, New York (Douglas H. Reiniger of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), LawGuardian.
Order, Family Court, Bronx County (Carol A. Stokinger, J.), entered January 8, 2009, which,insofar as it denied respondents parents' motions to vacate a dispositional order, same court andJudge, entered on or about September 9, 2008, following an inquest upon their default inappearing at the fact-finding and dispositional hearings, which terminated respondent mother'sparental rights to Bibianamiet L.-M. and both respondents' parental rights to Jonathon N. on theground of abandonment and committed the children's custody to the petitioning agency and theCommissioner of the Administration for Children's Services for the purpose of adoption,unanimously affirmed, without costs.
The Family Court properly exercised its discretion in denying respondents' motions to vacatetheir default in appearing on September 9, 2008 as they failed to demonstrate a reasonableexcuse for the default and a meritorious defense to the abandonment cause of action (seeCPLR 5015 [a] [1]; Matter of Robert B.v Tina Q., 40 AD3d 473 [2007]).
The parents' purported reliance on an adjourn slip for September 19, 2008 was unreasonable,given that the slip clearly related to a separate neglect proceeding involving the couple's youngerchild and that the parents appeared in court on March 28, 2008 and July 21, 2008, at which timesthe September 9 date was selected and confirmed. Even if the photocopy of the adjourn slipannexed to the motion were authentic and caused confusion, it was at odds with the selected andconfirmed court dates and the parents should have clarified any resulting confusion, especiallywhere the same excuse had been used in connection with an earlier failure to appear (see Matter of Nicholas S., 46 AD3d830 [2007]; Matter of ChristianT., 12 AD3d 613[*2][2004]).
Further, a claim for abandonment was established by proof that the parents had no contactwith and failed to visit the children in the six-month period preceding the filing of the petition(see Social Services Law § 384-b [4] [b]; [5] [a]). The mother's claim that thecaseworker did not respect her and was rude to her lacked the requisite specificity andcorroboration to support a claim that she was prevented or discouraged from contacting herchildren by the agency, on which claim she bore the burden (see Matter of Gloria Marie S., 55 AD3d 320 [2008], lvdismissed 11 NY3d 909 [2009]; Matter of Stefanie Judith N., 27 AD3d 403 [2006]). The mother'sclaim that the petitioning agency made an inappropriate referral is unpersuasive as the agencywas not required to prove diligent efforts in an abandonment proceeding (see Matter of Gabrielle HH., 1 NY3d549 [2003]). The father's claim that he failed to visit more frequently because visits were notscheduled and that only supervised visits were allowed, likewise failed to set forth a meritoriousdefense.
Finally, evidence of the parents' limited post-petition visits are insufficient to disturb thedisposition (see Matter of Dennisha Shavon C., 295 AD2d 123 [2002]).Concur—Gonzalez, P.J., Saxe, McGuire, Acosta and Abdus-Salaam, JJ.