In re Ardadian

• Decision Date: 02 July 2015
• Docket Number: 698 CAF 14-00273
• Parties: In the Matter of ARKADIAN S., Eden S., and Elysium S. Cayuga County Department of Health and Human Services, Petitioner–Respondent; Crystal S. and Joshua S., Respondents–Appellants.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 1457
13 N.Y.S.3d 746
2015 N.Y. Slip Op. 05803

In the Matter of ARKADIAN S., Eden S., and Elysium S.

Cayuga County Department of Health and Human Services, Petitioner–Respondent;
Crystal S. and Joshua S., Respondents–Appellants.

698 CAF 14-00273

Supreme Court, Appellate Division, Fourth Department, New York.

July 2, 2015.

13 N.Y.S.3d 747

Cynthia B. Brennan, Auburn, for Respondent–Appellant Crystal S.

D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth Dev. Moeller of Counsel), for Respondent–Appellant Joshua S.

Frederick R. Westphal, County Attorney, Auburn (Samuel P. Giacona of Counsel), for Petitioner–Respondent.

James A. Leone, Attorney for the Children, Auburn.

PRESENT: SCUDDER, P.J., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.

Opinion

MEMORANDUM:

130 A.D.3d 1457

Respondents appeal from an order denying respondent mother's motion pursuant to Family Court Act § 1061 and CPLR 5015(a)(2) and (3) to vacate various prior orders that limited her reunification and contact with the subject children, including a June 10, 2013 order modifying a permanency planning goal, a 2012 order suspending her parenting time with the subject children, and an October 27, 2010 order issued upon an application for temporary removal of the children. She also sought to vacate an August 30, 2012 order finding that respondent father abused and derivatively neglected the subject children. We note at the outset that the father is not an aggrieved party and therefore lacks standing

130 A.D.3d 1458

to appeal inasmuch as he did not formally join in the mother's motion to vacate (see Matter of Abraham S., 291 A.D.2d 452, 452, 737 N.Y.S.2d 542 ; Matter of George O., 115 Misc.2d 782, 783 n. 2, 455 N.Y.S.2d 146 ). Thus, his appeal must be dismissed (see CPLR 5511 ; Matter of Cooper v. Cooper, 74 A.D.3d 1868, 1868–1869, 901 N.Y.S.2d 887 ).

Contrary to the mother's contention, we conclude that Family Court did not abuse its discretion in denying her motion without a hearing (see Matter of Carrie F. v. David PP., 34 A.D.3d 1108, 1109, 825 N.Y.S.2d 791 ). The mother failed to make an “ ‘evidentiary showing sufficient to warrant a hearing’ ” on the isse of good cause to vacate the prior orders (Matter of Melissa FF., 285 A.D.2d 682, 684, 726 N.Y.S.2d 800 ; see Matter of Kole HH. [Thomas HH.], 84 A.D.3d 1518, 1519, 923 N.Y.S.2d 760 ; Matter of Cadejah AA., 34 A.D.3d 1141, 1142, 825 N.Y.S.2d 313 ). Indeed,...