| Matter of Alexander John B. (Cynthia A.) |
| 2011 NY Slip Op 06587 [87 AD3d 927] |
| September 27, 2011 |
| Appellate Division, First Department |
| In the Matter of Alexander John B. and Another, Children Allegedto be Abandoned. Cynthia A., Appellant; Cardinal McCloskey Services et al.,Respondents. |
—[*1] Rosin Steinhagen Mendel, New York (Todd Shaw of counsel), for respondent. George E. Reed, Jr., White Plains, attorney for the children.
Order, Family Court, Bronx County (Karen I. Lupuloff, J.), entered on or about May 13,2010, which denied appellant mother's motion to vacate two orders of disposition of the samecourt (Douglas E. Hoffman, J.), entered on or about June 10, 2009, upon appellant's default,terminating her parental rights to the subject children on the ground of abandonment, andcommitting custody and guardianship of the children to the Commissioner for the Administrationfor Children's Services of New York City and petitioner agency for the purpose of adoption,unanimously affirmed, without costs. Appeal from the orders of disposition, unanimouslydismissed, without costs, as taken from nonappealable papers.
Family Court properly exercised its discretion in denying appellant's motion to vacate theorders terminating her parental rights upon her default because her moving papers failed todemonstrate a reasonable excuse for her absence from the court's May 13, 2009 proceeding and ameritorious defense to the abandonment allegation (see Matter of Cain Keel L. [Derzerina L.], 78 AD3d 541 [2010],lv dismissed 16 NY3d 818 [2011]). Appellant offered no evidence substantiating herclaim that she was attending to "matters in the criminal court," or showing that she had apprisedher counsel, the court, or the agency of her unavailability (see Matter of Amirah Nicole A. [Tamika R.], 73 AD3d 428,428-429 [2010], lv dismissed 15 NY3d 766 [2010]; Matter of Devon Dupree F.,298 AD2d 103 [2002]; Matter of Laura Mariela R., 302 AD2d 300 [2003]). Herexplanation that the children's placement in the kinship foster home of her grandmother led her tobelieve that she would be able to have the children returned to her once she gets her life togetherinadequately explains why she was unable to attend the hearing.[*2]
Appellant also failed to substantiate her defense that shewas unable to visit the children during the relevant six-month period because she was in a drugtreatment program and her grandmother refused to let her see the children when she was in abetter position to care for them (see Matter of Derrick T., 261 AD2d 108 [1999]). Theevidence submitted indicates that she started the drug treatment program on October 28, 2009,well after the relevant period of May 28, 2008 through November 28, 2008.
The post-termination change in the children's foster situation does not warrant remitting thematter to Family Court for a new dispositional hearing to consider whether terminatingappellant's parental rights is still in the children's best interests (cf. Matter of Arthur C., 66 AD3d1009 [2009]). Nothing indicates that appellant had completed any of the drug,psychotherapy, and vocational training programs that she began in late 2009 and early 2010, andneither appellant nor the children's attorney has rebutted the agency's contention that appellanthas not been in contact with the children for years. That none of appellant's relatives are in aposition to adopt the children, and that the children are currently residing in a non-kinship fosterhome, does not alone warrant the conclusion that returning them to appellant would serve theirbest interests.
To the extent appellant appeals from the two orders of disposition, no appeal lies from ordersentered on default (see Matter ofAnthony M.W.A. [Micah W.A.], 80 AD3d 476 [2011]). Concur—Andrias, J.P.,Sweeny, Moskowitz, Richter and RomÁn, JJ.