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In re Mia P. R. D. (Anonymous)

Supreme Court of New York, Second Department

January 15, 2014

In the Matter of Mia P. R. D. (Anonymous). Suffolk County Department of Social Services, respondent; and David D. (Anonymous), appellant. (Proceeding No.1) In the Matter of Spencer D. D. (Anonymous). Suffolk County Department of Social Services, respondent; and David D. (Anonymous), appellant. (Proceeding No. 2) Docket Nos. B-10750-11, B-10751-11

Gina M. Scelta, Huntington, N.Y., for appellant.

Dennis M. Brown, County Attorney, Central Islip, N.Y. (Randall J. Ratje of counsel), for respondent.

PETER B. SKELOS, J.P. MARK C. DILLON THOMAS A. DICKERSON LEONARD B. AUSTIN, JJ.

DECISION & ORDER

In two related proceedings pursuant to Social Services Law § 384-b to terminate parental rights on the ground of abandonment, the father appeals from an order of the Family Court, Suffolk County (Hoffmann, J.), dated August 16, 2012, which denied his motion to vacate an order of the same court dated January 18, 2012, entered upon his failure to appear at fact-finding and dispositional hearings, reinstating two orders of the same court, both dated October 24, 2011, which terminated his parental rights and transferred custody and guardianship of the subject children to the Suffolk County Department of Social Services for the purpose of adoption.

ORDERED that the appeal from so much of the order dated August 16, 2012, as denied those branches of the father's motion which were to vacate the determination in the order dated January 18, 2012, reinstating two orders, both dated October 24, 2011, and to vacate the determination in those two orders dated October 24, 2011, terminating his parental rights and transferring custody and guardianship of the children to the Suffolk County Department of Social Services for the purpose of adoption, is dismissed as academic, without costs or disbursements; and it is further, ORDERED that the order dated August 16, 2012, is affirmed insofar as reviewed, without costs or disbursements.

The appeal from so much of the order dated August 16, 2012, as denied those branches of the father's motion which were to vacate the determination in the order dated January 18, 2012, reinstating two orders, both dated October 24, 2011, and to vacate the determination in those two orders terminating his parental rights and transferring custody of the subject children, must be dismissed as academic, since the children were legally adopted on June 15, 2012, and the father took no action to stay or challenge the adoption (see Matter of Shamika K.L.N. [ Melvin S.L. ], 101 A.D.3d 729). Nevertheless, the father's challenge to the finding of the Family Court that he abandoned the subject children, which was made in an order entered upon his failure to appear, is not academic, since a finding of abandonment, like a finding of neglect, constitutes " a permanent and significant stigma'" that might indirectly affect the father's status in future proceedings (Matter of Najad D. [ Kiswana M.], 99 A.D.3d 707, 708, quoting Matter of Ifeiye O., 53 A.D.3d 501, 501; see also Matter of Mahogany Z. [ Wayne O.], 72 A.D.3d 1171).

Contrary to the father's contention, the Family Court properly denied that branch of his motion which sought to vacate the determination that he abandoned the subject children, which was made in an order entered upon his default. "A parent seeking to vacate an order entered upon his or her default in a termination of parental rights proceeding must establish that there was a reasonable excuse for the default and a potentially meritorious defense to the relief sought in the petition" (Matter of Daniel Marcus Y. [ Marilyn Y.], 77 A.D.3d 843, 843; see CPLR 5015[a][1]; Matter of David John D., 38 A.D.3d 661, 662; Matter of Miguel M.-R.B., 36 A.D.3d 613, 614). "The determination of whether to relieve a party of a default is within the sound discretion of the Family Court" (Matter of Daniel Marcus Y. [ Marilyn Y.], 77 A.D.3d at 843; see Matter of Princess M., 58 A.D.3d 854, 854; Matter of Capri Alexis R., 48 A.D.3d 821, 822). Here, the father established neither a reasonable excuse for his default in appearing nor a potentially meritorious defense.

The father's remaining contention is without merit.

SKELOS, J.P., DILLON, DICKERSON and AUSTIN, JJ., concur.


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