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In re Mark W. (Anonymous)

Supreme Court of New York, Second Department

June 12, 2013

In the Matter of Mark W. (Anonymous). Administration for Children's Services, petitioner- respondent; Mark S. (Anonymous), appellant; and Juanita W. (Anonymous), intervenor-respondent. (Proceeding No. 1) In the Matter of Markiece S. (Anonymous). Administration for Children's Services, petitioner- respondent; Mark S. (Anonymous), appellant; and Juanita W. (Anonymous), intervenor-respondent. (Proceeding No. 2) In the Matter of Nadaija S. (Anonymous). Administration for Children's Services, petitioner- respondent; Mark S. (Anonymous), appellant; and Juanita W. (Anonymous), intervenor-respondent. (Proceeding No. 3) In the Matter of Markus S. (Anonymous). Administration for Children's Services, petitioner- respondent; and Mark S. (Anonymous), appellant; Juanita W. (Anonymous), intervenor-respondent. (Proceeding No. 4) Docket Nos. N-37688-09, N-37689-09, N-37690-09, N-37691-09

Austin I. Idehen, PLLC, Jamaica, N.Y., for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow of counsel), for respondent.

Steven Banks, New York, N.Y. (Tamara A. Steckler and Selene D'Alessio of counsel), attorney for the child Mark W.

Rhea G. Friedman, New York, N.Y., attorney for the children Markiece S. and Markus S. Philip Skittone, Brooklyn, N.Y., attorney for the child Nadaija S.

PETER B. SKELOS, J.P., DANIEL D. ANGIOLILLO, SHERI S. ROMAN, SYLVIA HINDS-RADIX, JJ.

DECISION & ORDER

In four related proceedings pursuant to Family Court Act article 10, the father appeals from an order of the Family Court, Kings County (Danoff, J.), dated March 13, 2012, which denied his motion to vacate a fact-finding order of the same court dated September 1, 2011, made upon his default in appearing on an adjourned date of the fact-finding hearing, finding that he neglected the subject children.

ORDERED that the order dated March 13, 2012, is reversed, on the law and in the exercise of discretion, without costs or disbursements, the motion to vacate the fact-finding order is granted, and the matter is remitted to the Family Court, Kings County, for further proceedings in accordance herewith.

In December 2009, the instant proceedings were commenced charging the appellant with abuse and neglect of his children. After a fact-finding hearing continued for several adjourned dates, the appellant failed to appear at the scheduled time of 9:30 a.m. on September 1, 2011, to complete his testimony. On that date, the attorney for three of the children asked to be relieved, the application was granted, and new counsel was appointed. After noting that the appellant was not present, the Family Court concluded that the father had defaulted, and entered findings of neglect based on the appellant's misuse of alcohol and acts of domestic violence. Thereafter, the appellant moved to vacate the fact-finding order and to reopen the fact-finding hearing. In support of the motion, the appellant submitted, inter alia, an affidavit wherein he stated that he mistakenly believed that the hearing was scheduled to begin at 10:30 a.m., and that he had a potentially meritorious defense to the petitions in that, inter alia, he did not misuse alcoholic beverages to the extent that he lost control of his actions. He further denied that he 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 Family Court 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 shall be granted upon an affidavit showing, inter alia, a potentially meritorious defense to the petition 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 A.D.3d 751, 753-754).

Under the circumstances presented, the appellant adequately demonstrated that his failure to appear was not willful (see id.; see also Matter of Taina M., 32 A.D.3d 210; Matter of Mursol B., 266 A.D.2d 76; Matter of Commissioner of Social Servs. of City of N.Y. v Rafael B., 186 A.D.2d 253; Matter of Laticia B., 156 A.D.2d 681). Moreover, the father demonstrated a potentially meritorious defense to the petitions (see Matter of Tahanie S. [ Ramon A. ], 97 A.D.3d at 754).

Accordingly, the order appealed from must be reversed, the motion to vacate the fact-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-opened fact-finding hearing.

SKELOS, J.P., ANGIOLILLO, ROMAN and HINDS-RADIX, JJ., concur.


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