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In Re Evan Matthew A.

New York Supreme and/or Appellate Courts Appellate Division, First Department


January 24, 2012

IN RE EVAN MATTHEW A., A DEPENDENT CHILD UNDER 18 YEARS OF AGE, ETC., AND JOCELYN YVETTE A., RESPONDENT-APPELLANT, NEW ALTERNATIVES FOR CHILDREN, PETITIONER-RESPONDENT.

Matter of Matter of Evan Matthew A. (Jocelyn Yvette A.)

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 24, 2012

Tom, J.P., Friedman, DeGrasse, Richter, Manzanet-Daniels, JJ.

Order, Family Court, Bronx County (Carol R. Sherman, J.), entered on or about September 28, 2010, which denied respondent mother's motion to vacate an order, same court and Justice, entered on or about August 18, 2009, which upon her default in appearing at the fact-finding and dispositional hearings, found that she had neglected the subject child, terminated her parental rights and committed the custody and guardianship of the child to petitioner agency and the Commissioner of the Administration for Children's Services for the purpose of adoption, unanimously affirmed, without costs.

To vacate a Family Court's order issued on default, upon failure to appear at either a fact-finding or dispositional hearing, the movant must establish both a reasonable excuse for the default and a meritorious defense to the allegations asserted (see CPLR 5015 [a][1]; Matter of Amirah Nicole A. [Tamika R.], 73 AD3d 428 [2010], lv dismissed 15 NY3d 766 [2010]). Respondent's purported excuse of illness was properly rejected since she failed to provide any documentation to substantiate her claim, and did not explain why she was unable to contact either the court or her attorney regarding her inability to attend the hearings of which she had notice (see Matter of Gloria Marie S., 55 AD3d 320 [2008], lv dismissed 11 NY3d 909 [2009]).

Moreover, respondent did not provide a meritorious defense to the charges of permanent neglect. She proffered only a general claim to have been engaged in her service plan and failed to provide any details or documentation (see Matter of Christopher James A. (Anne Elizabeth Pierre L.), __ AD3d __, 2011 NY Slip Op 09015 [2011]). It is undisputed that during the applicable time period, respondent never completed any aspects of her service plan. In addition, respondent never challenged the finding that she failed to consistently visit with the child, which in and of itself, constituted permanent neglect (see Matter of Aisha C., 58 AD3d 471 [2009], lv denied 12 NY3d 706 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 24, 2012

CLERK

20120124

© 1992-2012 VersusLaw Inc.



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