| Matter of Mikia H. (Monique K.) |
| 2010 NY Slip Op 08247 [78 AD3d 1575] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Mikia H. and Another. Erie County Department of SocialServices, Respondent; Monique K., Appellant. (Appeal No. 1.) |
—[*1] Joseph T. Jarzembek, Buffalo, for petitioner-respondent. Sheila Sullivan Dickinson, Attorney for the Children, Buffalo, for Mikia H. and Nianni H.
Appeal from an amended order of the Family Court, Erie County (Patricia A. Maxwell, J.),entered August 11, 2009 in a proceeding pursuant to Social Services Law § 384-b. Theamended order terminated the parental rights of respondent.
It is hereby ordered that the amended order so appealed from is unanimously affirmed withoutcosts.
Memorandum: These two consolidated appeals arise from a petition to terminate the parental rightsof respondent mother with respect to her children. The mother consented to a finding of permanentneglect with respect to her two daughters, and Family Court entered a default order terminating herparental rights with respect to her son. In appeal No. 1, the mother appeals from an order, enteredafter a dispositional hearing, terminating her parental rights with respect to her two daughters and, inappeal No. 2, she appeals from an order denying her motion to vacate the default order entered withrespect to her son.
We note at the outset that the court issued an amended decision and order in appeal No. 1 thatsuperseded the order from which the mother appeals. We nevertheless exercise our discretion to treatthe notice of appeal as valid and deem the appeal as taken from the amended order (seeCPLR 5520 [c]; Miller vRichardson, 48 AD3d 1298, 1300 [2008], lv denied 11 NY3d 710 [2008]).
Addressing the merits of the amended order in appeal No. 1, we reject the contention of themother that the court erred in terminating her parental rights with respect to her daughters. Petitionerestablished that the mother failed to comply with her service plan, inasmuch as she did not successfullycomplete substance abuse and domestic violence counseling. Indeed, the record supports the court'sconclusion that she continued to use drugs after she stipulated to the finding of permanent neglect. [*2]Contrary to the contention of the mother, " '[t]he progress made by [her]in the months preceding the dispositional determination was not sufficient to warrant any furtherprolongation of the child[ren]'s unsettled familial status' " (Matter of Roystar T. [Samarian B.], 72 AD3d 1569, 1569 [2010],lv denied 15 NY3d 707 [2010]; seeMatter of Elijah D. [Allison D.], 74 AD3d 1846, 1847 [2010]). Also contrary to thecontention of the mother, the court did not abuse its discretion in refusing to enter a suspendedjudgment with respect to her daughters. "Freeing the child[ren] for adoption provided [them] withprospects for permanency and some sense of the stability [they] deserved, rather than the perpetuallimbo caused by unfulfilled hopes of returning to [the mother's] care" (Matter of Raine QQ., 51 AD3d 1106,1107 [2008], lv denied 10 NY3d 717 [2008]).
We conclude in appeal No. 2 that the court did not abuse its discretion in denying the motion of themother seeking to vacate the default order terminating her parental rights with respect to her son. Aspreviously noted, a petition was filed seeking to terminate her parental rights, and the mother consentedto a finding of permanent neglect on the petition only concerning her two daughters. She failed toappear on the petition in connection with her son, however, and in moving to vacate the default ordershe failed to establish a reasonable excuse for her failure to appear and a meritorious defense to thepetition with respect to her son (see Matter of Raymond Anthony A., 192 AD2d 529 [1993],lv dismissed 82 NY2d 706 [1993]). Present—Smith, J.P., Peradotto, Carni, Sconiersand Gorski, JJ.