| Matter of Kenneth L. (Michelle B.) |
| 2012 NY Slip Op 01040 [92 AD3d 1245] |
| February 10, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of Kenneth L., an Infant. Jefferson CountyDepartment of Social Services, Respondent; Michelle B., Appellant. |
—[*1] Caraccioli & Nelson, PLLC, Watertown (Kevin C. Caraccioli of counsel), forpetitioner-respondent. Susan A. Sovie, Attorney for the Child, Watertown, for Kenneth L.
Appeal from an order of the Family Court, Jefferson County (Richard V. Hunt, J.), enteredAugust 30, 2010 in a proceeding pursuant to Family Court Act article 6. The order denied themotion of respondent to vacate an order terminating her parental rights upon her default.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order denying her motion to vacate aprior order entered upon her default that terminated her parental rights with respect to the subjectchild on the ground of permanent neglect. The mother contends that Family Court erred inreinstating the permanent neglect petition on the ground that there had been a substantial failureof a material condition of her judicial surrender of the child. We conclude that the mother waivedthat contention, inasmuch as her attorney conceded that the petition may be reinstated (see generally Matter of Brayanna G.,66 AD3d 1375 [2009], lv denied 13 NY3d 714 [2009]). Contrary to the furthercontention of the mother, her attorney's failure to contest reinstatement of the petition does notconstitute ineffective assistance of counsel. The mother's attorney "cannot be deemed ineffectivefor failing to make a motion or response to a motion that is unlikely to be successful" (Matter of Jamaal NN., 61 AD3d1056, 1058 [2009], lv denied 12 NY3d 711 [2009]) and, here, the court properlygranted petitioner's motion to reinstate the petition. We also reject the mother's contention thatshe was denied effective assistance of counsel based on, inter alia, her attorney's failure torequest an adjournment when the mother did not appear at the fact-finding and dispositionalhearing. The court delayed the hearing for 45 minutes and, when the mother still failed to appear,her attorney asked to be relieved from his representation of the mother in order to preserve themother's opportunity to move to vacate any default order entered against her. We conclude thatsuch tactical decision on the part of the mother's attorney does not constitute ineffectiveassistance of counsel (see Matter of Geraldine Rose W., 196 AD2d 313, 319 [1994],lv [*2]dismissed 84 NY2d 967 [1994]; see generally Matter of Derrick C., 52AD3d 1325, 1326 [2008], lv denied 11 NY3d 705 [2008]).
Finally, we conclude that the court properly exercised its discretion in denying the mother'smotion to vacate the order entered upon her default. Contrary to the mother's contention, herallegation in support of the motion that she missed the hearing because her vehicle broke downand she could not find alternative transportation does not constitute a reasonable excuse for herdefault because she failed to provide a credible explanation for her failure to advise the court orpetitioner of her unavailability (seeMatter of Lastanzea L. [Lakesha L.], 87 AD3d 1356 [2011]). Although the motheralleged that she contacted her attorney, he stated on the record that he did not receive anycommunication from the mother. The mother also failed to demonstrate a meritorious defense tothe petition (see Matter of Alexis C.R.[Victor C.], 71 AD3d 1511 [2010], lv dismissed 14 NY3d 922 [2010]; Matter of Zabrina M., 17 AD3d1132 [2005], lv denied 5 NY3d 710 [2005]), and she failed to explain herfour-month delay in seeking to vacate the order entered upon her default (see LastanzeaL., 87 AD3d 1356; Matter ofTashona Sharmaine A., 24 AD3d 135 [2005]). Present—Centra, J.P., Fahey,Peradotto, Carni and Lindley, JJ.