| Matter of Amirah Nicole A. (Tamika R.) |
| 2010 NY Slip Op 03781 [73 AD3d 428] |
| May 4, 2010 |
| Appellate Division, First Department |
| In the Matter of Amirah Nicole A. and Others, Children Alleged tobe Permanently Neglected. Tamika R., Appellant; Seamen's Society of Children and Families etal., Respondents, et al., Respondent. |
—[*1] John R. Eyerman, New York, for Seamen's Society of Children and Families respondent. Tamara A. Steckler, New York (Judith Harris of counsel), Law Guardian.
Order, Family Court, Bronx County (Gayle P. Roberts, J.), entered on or about March 26,2009, which denied respondent mother's motion to vacate orders of disposition, entered on orabout December 12, 2008, which, upon her default, terminated her parental rights to the subjectchildren upon findings of permanent neglect, and committed custody and guardianship of thechildren to petitioner agency and the Commissioner of the Administration for Children's Servicesfor the purpose of adoption, affirmed, without costs.
CPLR 5015, governing vacatur of orders granted on default, applies to hearings in FamilyCourt, such as fact-finding and dispositional hearings (Matter of Geraldine Rose W., 196AD2d 313, 316-317 [1994], lv dismissed 84 NY2d 967 [1994]; Matter of Jones,128 AD2d 403, 404 [1987]). To vacate an order issued on default, upon failure to appear ateither a fact-finding or dispositional hearing, the movant on such a motion must establish both areasonable excuse for the default and a meritorious defense to the allegations asserted(id. at 404; Matter of CalvinS., 47 AD3d 491 [2008];Matter of Kristen Simone V., 30 AD3d 174, 174-175 [2006]; Matter of AshleyMarie M., 287 AD2d 333, 333 [2001]; Matter of Derrick T., 261 AD2d 108, 109[1999]; Matter of Danielle R., 239 AD2d 305, 305 [1997]; Matter of Male J.,214 AD2d 417, 417 [1995]). Whether movant has in fact made the requisite showing is left to thesound discretion of the Family Court (Matter of Calvin S. at 491). Unsubstantiatedclaims or excuses should be summarily rejected (Matter of Derrick T., 261 AD2d at109).
In support of her motion to vacate the orders issued upon her default, respondent submittedan affidavit explaining that she was ill "[t]hroughout September and October 2008." [*2]She also provided medical documentation showing that she wasseen by medical doctors on September 29, 2008 and on October 22, 2008. However, respondentnever indicates that her illness actually prevented her from attending the fact-finding anddispositional hearings. More importantly, respondent's medical documentation is silent as to hermedical condition on the date of the hearings, thus failing to evince that she was in fact ill on thatdate. Accordingly respondent fails to substantiate her claim that illness prevented her fromattending the hearings and for this reason alone she fails to establish a reasonable excuse for herdefault (Matter of Menesha B., 306 AD2d 22 [2003]; Matter of Monica Irene C.,262 AD2d 69, 70 [1999]; Matter of Danielle R. at 305; Matter of Male J. at 417;Matter of Jones, 128 AD2d 403, 404 [1987]).
Additionally, respondent fails to establish a reasonable excuse for her default because shefailed to apprise counsel of her nonappearance prior to the hearings and fails to explain thereason for such failure in her motion to vacate her default (Matter of Ciara Lee C. [Lourdes R.], 67 AD3d 437, 437 [2009];Matter of Laura Mariela R., 302 AD2d 300, 301 [2003]; Matter of Ashley MarieM. at 333-334).
Since respondent fails to proffer a reasonable excuse for her default, we need not determinewhether she proffered a meritorious defense to the allegations.
We respectfully disagree with the dissent's position because whether this was respondent'sfirst failure to appear or whether petitioners had previously been granted several adjournments iswholly irrelevant to respondent's burden. Moreover, there is no evidence that the Family Court'sdecision was in any way influenced by its mistaken belief that respondent had a history ofnonappearance. Concur—Mazzarelli, J.P., Sweeny, Moskowitz and RomÁn, JJ.
Manzanet-Daniels, J., dissents in a memorandum as follows: I respectfully dissent. Appellantmother's motion to vacate her default at the fact-finding and dispositional hearings should havebeen granted. Appellant mother established both a reasonable excuse for the default and ameritorious defense to the action seeking to terminate her parental rights. In an affidavit insupport of her motion to vacate, appellant mother averred that she was absent on the date of thescheduled hearing because she was experiencing a medical crisis involving her endocrinesystem, as well as gastrointestinal distress and neurological indicators. She furnished medicaldocumentation, which showed that she first went to the doctor on September 29, 2008. When hersymptoms did not abate, on October 22, 2008, she went to the emergency room at JamaicaHospital. She was referred to both a neurologist and an endocrinologist. Appellant motheraverred that her symptoms had been present throughout September and October 2008. At thetime of her motion, in December 2008, her symptoms were under control but she was stillundergoing tests to determine the exact medical cause of her illness.
Significantly, the mother's absence was a one-time occurrence, not part of a pattern ofabsences or unexplained latenesses. The record indicates that the mother was present in court onJuly 4, 2007, January 3 and March 17, 2008, and only failed to appear on September 10, 2008.Indeed, the matter had been adjourned several times at the request of petitioner agency, whichwas experiencing difficulty securing the appearance of the caseworker. The record reflects that[*3]the Family Court adjourned the matter twice, to January 3,2008 and to March 17, 2008 (dates on which the mother was present), at the request of petitioneragency. Although appellant neglected to contact the court, agency or her attorney to alert themthat she was unable to appear on September 10, 2008, the record supports her explanation thather home phone had been disconnected and that she had limited and at times no cell phoneminutes. Appellant's attorney's request for an adjournment was denied and the Family Courtproceeded with the fact-finding and dispositional hearings over his objection.
One consideration that cannot be ignored, and which no doubt counted heavily againstappellant mother, was the Family Court's erroneous finding that appellant was not present onfive prior court dates. This finding is contradicted by the record, which clearly shows that themother was present in court on July 24, 2007, January 3, 2008 and March 17, 2008. The May 27and July 30, 2008 proceedings were attorney conferences at which the mother's appearance wasnot required. The court's reliance on this erroneous finding was no doubt prejudicial to appellantmother in determining whether a reasonable excuse existed sufficient to excuse her default.
The court accommodated petitioner agency's multiple requests for adjournment, yet affordedappellant mother, whose parental rights were at stake, no similar consideration. Under thecircumstances, this constituted an abuse of discretion.
Appellant also demonstrated a meritorious defense. The record does not establish thatappellant was noncompliant with her service plan for a period of one year or more, or for 15 outof the most recent 22 months following the date the children came into the agency's care, asrequired by section 384-b (7) (a) of the Social Services Law. Appellant was in compliance withher service plan from January 2006 through June 2006, at which time the children weretrial-discharged to her. While the extent of appellant's compliance with mental health servicesbetween July 2006 and January 2007 is unclear, this period still falls short of the statutoryrequirement. Furthermore, the progress notes introduced into evidence by the agency span theperiod from October 2005 through October 2006 only. No notes were introduced for the twomonths preceding the filing of the petition on January 5, 2007. The entries following the August29, 2006 conference indicate that appellant was participating in mental health services andappeared to be "much improved." She acknowledged that she had suffered a prolonged anxietyattack and breakdown that led to her consequent hospitalization. Appellant was reported toreceive "weekly individual psychotherapy and administration of a psychotropic medicationregimen."
It has often been remarked that "[t]he general rule with respect to opening defaults in civilactions is not to be applied as rigorously in actions or proceedings involving the custody, careand support of children" (Matter ofPrecyse T., 13 AD3d 1113, 1113-1114 [2004] [internal quotation marks and citationsomitted]). Appellant mother merely requested that the court give her an opportunity to presenther case on the merits. This was the least the court could have done, considering the parent-childrelationship at stake. I would accordingly reverse to grant the motion to vacate appellant'sdefault, vacate the underlying orders of disposition, and remand the matter to the Family Courtfor de novo fact-finding and dispositional hearings.