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In re McM

Supreme Court of New York, First Department

February 18, 2014

In Corey McM., A Child under Eighteen Years of Age, etc., and Randy McM., Respondent-Appellant, Edwin Gould Services for Children and Families and The Administration for Children's Services, Petitioner-Respondent.

Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), for appellant.

Steven N. Feinman, White Plains, attorney for the child.

Sweeny, J.P., Renwick, Moskowitz, Richter, Gische, JJ.

Order, Family Court, Bronx County (Gayle P. Roberts, J.), entered on or about September 1, 2012, which denied the father's habeas corpus petition seeking the return of the subject child Corey N., and granted the motion of the Administration of Children's Services to reinstate the neglect proceedings against the father, unanimously affirmed, without costs.

The Family Court appropriately vacated the August 4, 2008 order dismissing the neglect proceeding, and reinstated said proceeding nunc pro tunc. Dismissal of the neglect proceeding, occasioned by the disposition of permanency hearings and the termination of parental rights after the father's default, was a mere ministerial act. In light of the powers granted under Family Court Act §§ 1055 and 1088, the father's contention that the Family Court was not authorized to correct the procedural problem encountered when the father's default was vacated is without merit (see Matter of Dale P., 84 N.Y.2d 72 [1994]). The father's contention that a more equitable result would have been to direct ACS to begin all proceedings anew is also without merit, as such a directive would disrupt the child's stable home and place the father in a more advantageous position than if he had never defaulted in the permanent neglect proceeding. The court more appropriately restored the predefault status quo.


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