| Matter of Tahanie S. (Ramon A.) |
| 2012 NY Slip Op 05641 [97 AD3d 751] |
| July 18, 2012 |
| Appellate Division, Second Department |
| In the Matter of Tahanie S. Administration for Children's Services,Respondent; Ramon A., Appellant. (Proceeding No. 1.) In the Matter of Rianna A.Administration for Children's Services, Respondent; Ramon A., Appellant. (Proceeding No.2.) |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein andDiana Lawless of counsel), for respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and Patricia Colella of counsel),attorney for the children.
In two related child neglect proceedings pursuant to Family Court Act article 10, Ramon A.appeals, as limited by his brief, from so much of an order of the Family Court, Kings County(Beckoff, J.), dated July 7, 2011, as denied his motion to vacate a fact-finding order of the samecourt dated January 14, 2011, made upon his default in appearing at a fact-finding hearing,finding that he had neglected the subject children, and, in effect, to vacate an order of dispositionof the same court dated May 25, 2011, which, upon the fact-finding order, directed the release ofthe subject children to the mother's custody and directed him to complete, inter alia, domesticviolence counseling.
Ordered that the order dated July 7, 2011, is reversed insofar as appealed from, on the factsand in the exercise of discretion, without costs or disbursements, the appellant's motion to vacatethe fact-finding order and, in effect, to vacate the order of disposition is granted, the fact-findingorder and order of disposition are vacated, and the matter is remitted to the Family Court, KingsCounty, for a new fact-finding hearing, and, if necessary, a new dispositional hearing; and it isfurther,
Ordered that, upon remittal, the Family Court, Kings County, shall forthwith make an orderwith regard to the custody of the subject children pending the new hearing or hearings anddetermination.[*2]
These proceedings were commenced pursuant to FamilyCourt Act article 10 upon the filing of two petitions, both dated April 14, 2009, in which it wasalleged that Ramon A. (hereinafter the appellant) was a person legally responsible for the care oftwo female children (hereinafter the subject children), and that these children were neglected byhim. The petitions were based on a single incident, in which it was alleged that the appellant,among other things, grabbed one of the subject children on the side of her neck.
The fact-finding hearing began on November 20, 2009. The appellant was present at thehearing, but the caseworker employed by the Administration for Children's Services (hereinafterACS) was absent. ACS introduced medical records and progress notes taken by the absentemployee, which were admitted into evidence over the appellant's objection. No fact witnesseswere called to testify. The hearing was thereafter adjourned until February 9, 2010.
On February 9, 2010, the fact-finding hearing continued. The appellant was again present atthe hearing, but the mother was not. The hearing was adjourned until March 3, 2010. Theappellant returned on that date, only to have the case adjourned until March 24, 2010, for a statusconference. The appellant was informed that he need not attend the status conference on March24, 2010. At the status conference, the matter was again adjourned, and the status conference wasrescheduled for May 3, 2010.
On May 3, 2010, the matter was continued and the appellant was again present. The hearingwas orally adjourned until August 25, 2010, but a discussion regarding other potential follow-updates ensued. The date was changed to August 24, 2010, during the course of a discussionextending over six pages of the transcript, during which the latest adjournment date was changednumerous times.
On August 24, 2010, the hearing was continued, but the appellant was not present. ACSintroduced certain other exhibits, but no fact witnesses were called to testify. ACS rested on thebasis of the documents which had been admitted into evidence. The Family Court reserveddecision.
The proceedings continued on December 13, 2010. The appellant was present, and hisattorney explained that the appellant had missed the previous hearing date because he relied onthe adjournment slip that he had received, which listed the adjournment date as August 25, 2010.The Family Court did not address the appellant's statement, and instead adjourned the proceedinguntil January 14, 2011, due to the fact that the medical records introduced by ACS had beenmisplaced and had to be re-subpoenaed.
On January 14, 2011, the proceedings continued, with the appellant again present. TheFamily Court concluded that the appellant had defaulted by failing to appear at the August 24,2010, hearing date. The Family Court further concluded, based on the documentary evidencesubmitted by ACS, that the appellant had neglected the two subject children based on theincident described in the petitions. In a fact-finding order dated January 14, 2011, the FamilyCourt determined that the petitioner had established by a preponderance of the evidence that theappellant neglected the subject children. The order was made on the appellant's default.
In an order of disposition dated May 25, 2011, it was determined that the subject childrenwould be "at risk of abuse or neglect" if returned to appellant, and, therefore, they were releasedto the custody of their mother. The order of disposition also directed the appellant to complete,inter alia, domestic violence counseling.
The appellant moved to vacate the fact-finding order and, in effect, the order of disposition.In support of his motion the appellant submitted, inter alia, an affidavit in which he controvertedthe version of the facts presented in the documents introduced by ACS. The appellant specificallydenied grabbing the subject child on her neck, as alleged in the petition. The appellant assertedthat the medical records were inconsistent with the version of the events alleged by ACS.[*3]
The appellant's motion was opposed by ACS and theattorney for the children. In an order dated July 7, 2011, the appellant's motion was denied on theground that he failed to establish a reasonable excuse for the default as well as a meritoriousdefense.
"If the parent or other person legally responsible for the child's care is not present, the courtmay proceed to hear a petition under [Family Court Act article 10] if the child is represented bycounsel" (Family Ct Act § 1042). "[T]he parent or other person legally responsible for thechild's care may move to vacate the order of disposition and schedule a rehearing" within oneyear after being served with a copy of the order of disposition (id.). "Such motion shall begranted on an affidavit showing . . . a meritorious defense to the petition, unless thecourt finds that the parent or other person willfully refused to appear at the hearing, in which casethe court may deny the motion" (id.).
Here, the appellant submitted, among other things, an affidavit in which he averred that hehad not intentionally defaulted, inasmuch as he missed the August 24, 2010, hearing date onlybecause he incorrectly thought that the hearing was adjourned until August 25, 2010. Theappellant actually appeared at the Family Court on August 25, 2010, only to find that thefact-finding hearing had already been conducted. The father also submitted the adjournment slip,which incorrectly showed that the matter was adjourned until August 25, 2010. Under thecircumstances, including the father's record of appearances at the previous hearing dates and thefact that the August adjournment date was changed numerous times during extended discussionsat the previous court date, we conclude that the appellant adequately demonstrated that his failureto appear at the fact-finding hearing on August 24, 2010, was not willful (see Family CtAct § 1042; cf. Matter ofShavenon N. [Miledy L.N.], 71 AD3d 401, 402 [2010]; Matter of Nicholas S., 46 AD3d830, 831 [2007]).
Furthermore, the appellant demonstrated a potentially meritorious defense to the petitions(see Family Ct Act § 1042). Contrary to the contention of ACS, the appellant'saffidavit was not conclusory. The appellant did more than "merely intone[ ] that he had ameritorious defense" (Matter of Jones, 128 AD2d 403, 404 [1987]). Rather, hecontroverted the evidence against him and presented an affidavit, based on his own personalknowledge, to support his version of what had transpired during the incident which formed thebasis for the neglect petitions (cf. Matter of Nathalie A., 145 AD2d 629, 630 [1988]).The appellant was not required to conclusively disprove the allegations of the petition orotherwise establish as a matter of law that the entire proceeding must be resolved in his favor,since such a showing would render "a rehearing" superfluous (Family Ct Act § 1042). Theappellant was simply required to show that he possessed "a reasonable position on the merits"(Siegel, NY Prac § 108 at 197 [4th ed]), which was "potentially meritorious" (Matter of Zeeyana B. [Darnell B.], 84AD3d 1227, 1227 [2011]; Matter ofJenna C. [Omisa C.], 81 AD3d 941, 942 [2011]).
Under the circumstances here, we conclude that the Family Court improvidently exercised itsdiscretion in denying the appellant's motion to vacate the fact-finding order and, in effect, tovacate the order of disposition. Accordingly, the fact-finding order and order of disposition mustbe vacated, and the matter must be remitted to the Family Court, Kings County, for a newfact-finding hearing, and, if necessary, a new dispositional hearing. Skelos, J.P., Balkin, Lott andMiller, JJ., concur.