| Matter of Evelyn R. (Franklin R.) |
| 2014 NY Slip Op 03691 [117 AD3d 957] |
| May 21, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Evelyn R. Westchester CountyDepartment of Social Services, Respondent; Franklin R.,Appellant. |
Stephen Kolnik, Yonkers, N.Y., for appellant.
Edward Lammers, Tarrytown, N.Y., attorney for the child.
In a child neglect proceeding pursuant to Family Court Act article 10, the fatherappeals (1) from an order of the Family Court, Westchester County (Malone, J.), enteredDecember 7, 2012, which denied his motion to vacate a fact-finding order of the samecourt dated August 7, 2012, made upon his default in appearing on an adjourned date ofthe fact-finding hearing, finding that he neglected the subject child, and (2), as limited byhis brief, from so much of an order of disposition of the same court, also enteredDecember 7, 2012, as, upon the fact-finding order, adjudged him to have neglected thesubject child.
Ordered that the order entered December 7, 2012, is affirmed, without costs ordisbursements; and it is further,
Ordered that the order of disposition is affirmed insofar as appealed from, withoutcosts or disbursements.
"The court may adjourn a fact-finding hearing . . . for good causeshown . . . on motion of . . . the parent or other person legallyresponsible for the care of the child" (Family Ct Act § 1048 [a]). Here, inlight of the failure of the father's attorney to offer any explanation for the father'sabsence, other than vague and unsubstantiated speculation, the Family Court providentlyexercised its discretion in denying the application for an adjournment of the fact-findinghearing (see Matter of AngieN.W. [Melvin A.W.], 107 AD3d 907, 908-909 [2013]; Matter of Kinara C. [JeromeC.], 89 AD3d 839, 841 [2011]; Matter of Sanaia L. [Corey W.], 75 AD3d 554, 554-555[2010]).
Likewise, the Family Court providently exercised its discretion in denying thefather's motion to vacate the order of fact-finding dated August 7, 2012, which was madeupon his default in appearing on October 12, 2011. While the Family Court's finding ofwillful refusal to appear at the hearing is not supported by the record (see Matter of Mark W. [JuanitaW.], 107 AD3d 816, 817 [2013]; Matter of Tahanie S. [Ramon A.], 97 AD3d 751 [2012]),the record is clear that the father lacked a [*2]potentiallymeritorious defense. The father had not denied the facts elicited at the hearing, includinghis failure to contact the police when the then 15-year-old child ran away in February of2010. Moreover, he did not deny that he had made a statement to the caseworker that,while he had previously filed petitions with the Probation Department seekingadjudication of the child as a person in need of supervision (hereinafter PINS), this timehe was "tired" and did not wish to contact Protective Services, which would have becomeinvolved upon the filing of a PINS petition. This was sufficient to establish, by apreponderance of the evidence (see Family Ct Act § 1046 [b] [i]),that the child's physical, mental, and emotional condition was impaired, or was in dangerof being further impaired, as a consequence of her father's failure "to exercise a minimumdegree of care in providing the child with proper supervision [and] guardianship" (Nicholson v Scoppetta, 3NY3d 357, 368 [2004]; see Family Ct Act § 1012 [f]). Dillon,J.P., Balkin, Miller and Maltese, JJ., concur.