In re Joshua E.R.
| Decision Date | 03 December 2014 |
| Docket Number | 2013-09941, 2013-09944, 2013-09946, (Docket Nos. B-26292-11, B-16881-10, B-16882-10) |
| Citation | 123 A.D.3d 723,2014 N.Y. Slip Op. 08441,997 N.Y.S.2d 739 |
| Parties | In the Matter of JOSHUA E.R. (Anonymous). Cardinal McCloskey Community Services, et al., respondents; Yolaine R. (Anonymous), et al., appellants. (Proceeding No. 1) In the Matter of Jeranamor A.R. (Anonymous), Jr. Cardinal McCloskey Community Services, et al., respondents; Yolaine R. (Anonymous), et al., appellants. (Proceeding No. 2) In the Matter of Elijah J.R. (Anonymous). Cardinal McCloskey Community Services, et al., respondents; Yolaine R. (Anonymous), et al., appellants. (Proceeding No. 3). |
| Court | New York Supreme Court — Appellate Division |
Richard Giacoma, Jamaica, N.Y., for appellant Yolaine R.
Frank Bruno, Jr., Glendale, N.Y., for appellant Jeranamor R.
Geoffrey P. Berman, Larchmont, N.Y., for respondent Cardinal McCloskey Community Services.
Angela S. Hull, Jamaica, N.Y., attorney for the children.
WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, SANDRA L. SGROI, and JOSEPH J. MALTESE, JJ.
Appeals from three orders of fact-finding and disposition of the Family Court, Queens County (Margaret P. McGowan, J.) (one as to each child), all entered September 20, 2013. Each order found that the mother and the father had permanently neglected the subject child and terminated their parental rights as to the subject child.
ORDERED that the orders are affirmed, without costs or disbursements.
The mother and the father have three children: Jeranamor A.R., Jr., Elijah J.R., and Joshua E.R. Jeranamor was removed from the parents' care in November 2007 at the age of five months following the filing of a neglect petition by the Administration for Children's Services of the City of New York (hereinafter ACS), alleging drug use by the father and mental illness as to the mother. Elijah also was removed within days of his birth in October 2008 and placed with the same foster family as Jeranamor. Joshua was born in March 2010 and was placed with a different foster family within a few days of his birth.
The petitioner agency informed the parents of a service plan for the return of Jeranamor and Elijah, which included taking parenting classes, attending domestic violence training, entering an anger management program, and consistently maintaining visitation with the children. The mother was also instructed to engage in mental health services, which included therapy and medication. The father was required to enter and complete a drug rehabilitation program. After Joshua was placed in foster care, the mother was further informed that she needed to maintain her mental health treatment, continue visitation in a consistent fashion, and obtain stable housing. The father was instructed to complete all the services recommended with respect to the older children.
In September 2010, the agency filed petitions pursuant to article 6 of the Family Court Act, alleging that Jeranamor and Elijah were permanently neglected pursuant to Social Services Law § 384–b. The agency filed a third petition in December 2011, alleging that Joshua also was permanently neglected due to the parents' failure to plan for his return and to maintain continuous contact with him.
Following the mother's testimony on direct examination during the fact-finding hearing as to the older children, she failed to appear in court on the date of her cross-examination. The Family Court struck her testimony and drew a negative inference from her failure to testify. On the next hearing date, the mother appeared with counsel and moved to vacate her default, asserting that she failed to arrive in a timely fashion on the previous hearing date because her train was delayed. The court denied the request, and found that Jeranamor and Elijah were permanently neglected. Following a second fact-finding hearing, the court also found Joshua to be permanently neglected. After a dispositional hearing with respect to all three petitions, the court found that it was in the children's best interests for the parental rights of the mother and father to be terminated and for the agency to receive custody of the children so that they could eventually be adopted by their respective foster mothers. The parents separately appeal.
The mother contends that the Family Court should have vacated her default, which resulted from her failure to appear for her cross-examination during the first fact-finding hearing. The question of whether to relieve a party of an order entered on default is a matter left to the sound discretion of the court (see Matter of Morales v. Marma, 88 A.D.3d 722, 722, 930 N.Y.S.2d 629 ). In a proceeding such as the one at issue here, which is to terminate parental rights pursuant to Social Services Law § 384–b, a parent must show that there was a reasonable excuse for the default and a potentially meritorious defense in order to establish his or her entitlement to vacatur of a default order (see CPLR 5015[a] ; Matter of Orange County Dept. of Social Servs. v. Germel Y., 101 A.D.3d 1019, 1020, 957 N.Y.S.2d 240 ; Matter of Cassidy Sue R., 58 A.D.3d 744, 870 N.Y.S.2d 799 ; Matter of Francisco R., 19 A.D.3d 502, 796 N.Y.S.2d 247 ; Matter of Vanessa F., 9 A.D.3d 464, 779 N.Y.S.2d 917 ; Matter of Daquan Malik B., 6 A.D.3d 428, 429, 774 N.Y.S.2d 382 ). Contrary to the mother's contentions, she failed to provide a reasonable excuse or a potentially meritorious defense. She failed to present detailed information or documentation to substantiate her claim of a delay in transportation. In addition, the mother did not explain her failure to contact her attorney or the court (see Matter of Christopher James A. [Anne Elizabeth Pierre L.], 90 A.D.3d 515, 935 N.Y.S.2d 16 ; Matter of Chelsea Antoinette A. [Anna S.], 88 A.D.3d 627, 931 N.Y.S.2d 503 ). The mother also presented no defense at all in support of her application to vacate her default. Accordingly, the Family Court did not err in denying the mother's request to vacate her default.
The Family Court also properly found that both parents had permanently neglected the subject children. A parent has permanently neglected a child when he or she fails for a period of at least one year after the child came into the custody of an authorized agency substantially and continuously or repeatedly to maintain contact with or plan for the future of the child (see Social Services Law § 384–b[7][a] ; Matter of Naomi G., 65 A.D.3d 1344, 1344–1345, 887 N.Y.S.2d 132 ; Matter of Ray A., 30 A.D.3d 410, 411, 817 N.Y.S.2d 328 ). The threshold consideration in a proceeding to terminate parental rights on the ground of permanent neglect is whether the agency established by clear and convincing evidence that it fulfilled its statutory obligation to exercise diligent efforts to encourage and strengthen the parental relationship (see Matter of Sheila G., 61 N.Y.2d 368, 381, 385, 474 N.Y.S.2d 421, 462 N.E.2d 1139 ; Matter of Hadiyyah J.M. [Fatima D.R.], 91 A.D.3d 874, 938 N.Y.S.2d 565 ; Matter of Darlene L., 38 A.D.3d 552, 554–555, 831 N.Y.S.2d 500 ). Diligent efforts are reasonable attempts by an authorized agency to assist, develop, and encourage a meaningful relationship between the parent and child, including, inter alia, making referrals for counseling, making suitable arrangements for the parent to...
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Cardinal Mccloskey Cmty. Servs. v. S (In re Joshua E.R.)
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