| Matter of Octavia Loretta R. (Randy McN.—KeishaW.) |
| 2012 NY Slip Op 02055 [93 AD3d 537] |
| March 20, 2012 |
| Appellate Division, First Department |
| In the Matter of Octavia Loretta R. and Another, Children Allegedto be Neglected. Randy McN., Sr., Appellant; Keisha W., Respondent; Edwin Gould Services forChildren and Families et al., Respondents. |
—[*1] John R. Eyerman, New York, for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Patricia Colella of counsel), attorneyfor the children.
Order, Family Court, Bronx County (Gayle P. Roberts, J.), entered on or about January 22,2010, which denied appellant's motion to vacate two orders of fact-finding and disposition of thesame court, entered on September 25, 2008, upon appellant's default, terminating his parentalrights to the subject children on the ground of permanent neglect, and committing custody andguardianship of the children to the Commissioner for the Administration for Children's Servicesof New York City and petitioner agency for the purpose of adoption, unanimously affirmed,without costs, insofar as it concerns Randy McN., Jr. Appeal from so much of the order asconcerned Octavia Loretta R., unanimously dismissed, without costs, as moot.
Family Court properly exercised its discretion in denying appellant's motion to vacate theorders terminating his parental rights upon his default because his moving papers failed todemonstrate a reasonable excuse for his absence from the court's February 5, 2008 proceedingand a meritorious defense to the permanent neglect allegation (see Matter of Alexander John B. [CynthiaA.], 87 AD3d 927 [2011]). Even accepting that appellant was unavailable for that entireday due to a mandatory Department of Housing Preservation and Development program, heoffered no evidence showing that he had apprised his counsel, the court, or the agency of hisunavailability.
Appellant also failed to establish that he had a meritorious defense to the permanent [*2]neglect allegation. He failed to establish that he had not relapsed orthat the agency made no effort to help him with his drug addiction, or that he had completed thedrug program at the time of the hearings (see Matter of Isaac Howard M. [Fatima M.], 90 AD3d 559 [2011]).He also did not establish that he attended all of the scheduled visits with the children. Nor did hedemonstrate that at the time of the dispositional hearing he was ready to care for Randy. Rather,he acknowledged that he had not completed his second drug program and did not have suitablehousing.
The appeal insofar as it concerns Octavia is moot since on or about August 10, 2011, theFamily Court reopened the dispositional hearing as to Octavia and discharged her to appellant'scare on a trial basis, upon all the parties' consent, and she continues to reside with appellant.Concur—Mazzarelli, J.P., Saxe, Renwick, Richter and Abdus-Salaam, JJ.