| Matter of Mark W. (Juanita W.) |
| 2013 NY Slip Op 04347 [107 AD3d 816] |
| June 12, 2013 |
| Appellate Division, Second Department |
| In the Matter of Mark W. Administration for Children'sServices, Respondent; Mark S., Appellant; Juanita W., Intervenor-Respondent.(Proceeding No. 1.) In the Matter of Markiece S. Administration for Children's Services,Respondent; Mark S., Appellant; Juanita W., Intervenor-Respondent. (Proceeding No.2.) In the Matter of Nadaija S. Administration for Children's Services, Respondent; MarkS., Appellant; Juanita W., Intervenor-Respondent. (Proceeding No. 3.) In the Matter ofMarkus S. Administration for Children's Services, Respondent; Mark S., Appellant;Juanita W., Intervenor-Respondent. (Proceeding No. 4.) |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgowof counsel), for respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and Selene D'Alessio ofcounsel), attorney for the child Mark W. Rhea G. Friedman, New York, N.Y., attorney for the children Markiece S. andMarkus S. Philip Skittone, Brooklyn, N.Y., attorney for the child Nadaija S.
In four related proceedings pursuant to Family Court Act article 10, the fatherappeals [*2]from an order of the Family Court, KingsCounty (Danoff, J.), dated March 13, 2012, which denied his motion to vacate afact-finding order of the same court dated September 1, 2011, made upon his default inappearing on an adjourned date of the fact-finding hearing, finding that he neglected thesubject children.
Ordered that the order dated March 13, 2012, is reversed, on the law and in theexercise of discretion, without costs or disbursements, the motion to vacate thefact-finding order is granted, and the matter is remitted to the Family Court, KingsCounty, for further proceedings in accordance herewith.
In December 2009, the instant proceedings were commenced charging the appellantwith abuse and neglect of his children. After a fact-finding hearing continued for severaladjourned dates, the appellant failed to appear at the scheduled time of 9:30 a.m. onSeptember 1, 2011, to complete his testimony. On that date, the attorney for three of thechildren asked to be relieved, the application was granted, and new counsel wasappointed. After noting that the appellant was not present, the Family Court concludedthat the father had defaulted, and entered findings of neglect based on the appellant'smisuse of alcohol and acts of domestic violence. Thereafter, the appellant moved tovacate the fact-finding order and to reopen the fact-finding hearing. In support of themotion, the appellant submitted, inter alia, an affidavit wherein he stated that hemistakenly believed that the hearing was scheduled to begin at 10:30 a.m., and that hehad a potentially meritorious defense to the petitions in that, inter alia, he did not misusealcoholic beverages to the extent that he lost control of his actions. He further denied thathe had physical contact with the mother during the incident referred to in the petitions.The court denied the motion.
If a parent is not present, the court may proceed to hear a petition pursuant to FamilyCourt Act article 10 if the child is represented by counsel (see Family Ct Act§ 1042). However, a timely motion to vacate the resulting fact-finding order shallbe granted upon an affidavit showing, inter alia, a potentially meritorious defense to thepetition unless the court finds that the parent willfully refused to appear at the hearing(see Family Ct Act § 1042; Matter of Tahanie S. [Ramon A.], 97 AD3d 751, 753-754[2012]).
Under the circumstances presented, the appellant adequately demonstrated that hisfailure to appear was not willful (see id.; see also Matter of Taina M., 32 AD3d 210 [2006];Matter of Mursol B., 266 AD2d 76 [1999]; Matter of Commissioner of SocialServs. of City of N.Y. v Rafael B., 186 AD2d 253 [1992]; Matter of LaticiaB., 156 AD2d 681 [1989]). Moreover, the father demonstrated a potentiallymeritorious defense to the petitions (see Matter of Tahanie S. [Ramon A.], 97AD3d at 754).
Accordingly, the order appealed from must be reversed, the motion to vacate thefact-finding order must be granted, and the matter must be remitted to the Family Court,Kings County, to allow the appellant an opportunity to present evidence at a re-openedfact-finding hearing. Skelos, J.P., Angiolillo, Roman and Hinds-Radix, JJ., concur.