| Matter of Eustace B. (Shondella M.) |
| 2010 NY Slip Op 06354 [76 AD3d 428] |
| August 10, 2010 |
| Appellate Division, First Department |
| In the Matter of Eustace B., a Child Alleged to be Neglected.Shondella M., Appellant; Administration for Children's Services,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Marta Ross of counsel), forrespondent. Tamara A. Steckler, Legal Aid Society, New York (Judith Stern of counsel), LawGuardian.
Order of disposition, Family Court, New York County (Jody Adams, J.), entered on or aboutJune 5, 2009, which, insofar as appealed from, denied, sub silentio, respondent mother's motionto vacate her default at the fact-finding hearing on April 14, 2009, and to dismiss the petition,unanimously reversed, on the law, without costs, the motion granted, and the petition dismissed.Appeal from order of fact-finding, same court and Judge, entered on or about June 24, 2009,following an inquest on April 14, 2009 upon respondent's default, unanimously dismissed,without costs, as taken from a non-appealable order.
Respondent persuasively argues that the neglect petition should have been dismissedpursuant to Family Court Act § 1051 (c) because the court's "aid" was not needed here,inasmuch as, in releasing the child to respondent's custody, the court in effect determined thatthere was no basis for supervision or for respondent's participation in referrals made by theagency. It was established that the child was being raised as a model person and student andwished to continue residing in the security of his mother's custody. Furthermore, the domesticviolence incident between respondent and her boyfriend was isolated (see Matter of KaylaB., 262 AD2d 137 [1999]), and, in any event, that relationship had ended (see Matter of Kirk V., 60 AD3d427 [2009]).
As to respondent's motion to vacate her default in appearing at the fact-finding hearing, wefind that there is both an absence of evidence that respondent's failure to appear was willful, anda demonstration of a meritorious defense to the neglect petition, warranting reversal of the trialcourt's denial of the motion (see Matterof Taina M., 32 AD3d 210, 211 [2006]). While "we are cognizant that family courts inmany counties across the state have crushing case loads, extremely difficult family issues todecide, and limited time to make fair and informed determinations in what are often chaotic andhighly charged emotional cases" (Alix A. v Erika H., [*2]45 AD3d 394, 394-395 [2007]), we find that the court's decision todeny respondent's counsel's request for a second call and to proceed to the fact-finding hearingby inquest was ill considered, given the fact that the court scheduled the case for 4:00 p.m. toaccommodate respondent's work schedule and respondent's counsel informed the court thatrespondent was "on her way," and the fact that respondent had attended the other scheduled courtdates without incident (see Matter of Mursol B., 266 AD2d 76, 76 [1999]). Moreover, allthese facts, as well as the positive relationship between respondent and the child, were brought tothe court's attention again when respondent moved to vacate. Inexplicably, the court denied themotion.
Were it not for our dismissal of the petition pursuant to Family Court Act § 1051 (c),we would further find that the agency's evidence at the hearing failed to establish neglect(see Family Court Act § 1012 [f] [i]; § 1046 [a] [viii]) by a preponderanceof the evidence (see Family Court Act § 1046 [b] [i]; Nicholson v Scoppetta, 3 NY3d357, 368 [2004]). The agency's proof that the child felt "scared and nervous" during theisolated domestic violence incident did not establish that respondent had failed to exercise aminimum degree of care, or that the child's mental or emotional condition was impaired or inimminent danger of being impaired as a result of the altercation (see id.; KaylaB., 262 AD2d at 137). Concur—Andrias, J.P., Friedman, McGuire, Acosta andDeGrasse, JJ.