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In Re Giovanni Maurice D.

New York Supreme Court Appellate Division, First Department


October 25, 2012

IN RE GIOVANNI MAURICE D., A DEPENDENT CHILD UNDER THE AGE OF EIGHTEEN YEARS, ETC., AND WILNER B., RESPONDENT-APPELLANT, NEW ALTERNATIVES FOR CHILDREN, INC., PETITIONER-RESPONDENT.

Matter of Matter of Giovanni Maurice D. (Wilner B.)

Decided on October 25, 2012

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.

Mazzarelli, J.P., Sweeny, Renwick, Richter, Roman, JJ.

Order, Family Court, Bronx County (Anne-Marie Jolly, J.), entered on or about April 19, 2011, which denied respondent father's motion to vacate orders of fact-finding and disposition of the same court and Judge, entered on or about January 19, 2011 and January 25, 2011, upon respondent's default, terminating his parental rights to the subject child on the ground of permanent neglect, and committing custody and guardianship of the child to the Commissioner for the Administration of Children's Services of New York City and petitioner agency for the purpose of adoption, unanimously affirmed, without costs.

Family Court properly exercised its discretion in denying respondent's motion to vacate the orders terminating his parental rights and freeing the child for adoption upon his default because his moving papers failed to demonstrate a reasonable excuse for his absence from the court's proceedings on January 19, 2011 and January 25, 2011, and a meritorious defense to the permanent neglect allegation (see Matter of Octavia Loretta R. [Randy McN.-Keisha W.], 93 AD3d 537, 538 [1st Dept 2012]).

Respondent's assertion that he missed the January 19 hearing because he was confused as to the proper date of the proceeding is not a reasonable excuse for his failure to appear since he was present in court when the date for the hearing was set and he took no steps to clear up any alleged confusion by contacting his counsel (see e.g. Matter of Dominique Beyonce R. [Marie Isabel R.], 82 AD3d 984, 985 [2nd Dept 2011]). As to the January 25 hearing, respondent's explanation was not credible.

Respondent also failed to establish a meritorious defense to the permanent neglect allegation. His affidavit supporting vacatur of the default provides only generalized conclusory statements that are insufficient to establish a meritorious defense (In re Gloria Marie S., 55 AD3d 320 [1st Dept 2008], lv dismissed 11 NY3d 909 [2009]).

We have considered respondent's remaining arguments and find them unavailing.

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

ENTERED: OCTOBER 25, 2012

CLERK

20121025

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