In re Alexander John
B.
Matter of Alexander John B. v Cynthia A.
2011
NY Slip Op 06587
Decided
on September 27, 2011
Appellate
Division, First Department
Published
by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This
opinion is uncorrected and subject to revision before publication in the
Official Reports.
Decided
on September 27, 2011
Andrias, J.P., Sweeny, Moskowitz,
Richter, Román, JJ. 5571- 5571A-
5571B
[*1]In
re Alexander John B. and Another, Children Under the Age of Eighteen Years, etc.,
and
Cynthia A., Respondent-Appellant, Cardinal McCloskey
Services, et al., Petitioners-Respondents.
Andrew
J. Baer,
Rosin
for respondent.
George E. Reed, Jr.,
Order,
Family Court, Bronx County (Karen I. Lupuloff, J.),
entered on or about May 13, 2010, which denied appellant mother's motion to
vacate two orders of disposition of the same court (Douglas Hoffman, J.),
entered on or about June 10, 2009, upon appellant's default, terminating her
parental rights to the subject children on the ground of abandonment, and
committing custody and guardianship of the children to the Commissioner for the
Administration for Children's Services of New York City and petitioner agency
for the purpose of adoption, unanimously
affirmed, without costs. Appeal from the
orders of disposition, unanimously dismissed, without costs, as taken from nonappealable papers.
Family
Court properly exercised its discretion in denying appellant's motion to vacate
the orders terminating her parental rights upon her default because her moving
papers failed to demonstrate a reasonable excuse for her absence from the
court's May 13, 2009 proceeding and a meritorious defense to the abandonment
allegation (see Matter of Cain Keel L. [Derzerina
L.], 78 AD3d 541 [2010], lv dismissed 16 NY3d 818
[2011]). Appellant offered no evidence substantiating her claim that she was
attending to "matters in the criminal court," or showing that she had
apprised her counsel, the court, or the agency of her unavailability (see
Matter of Amirah Nicole A. [Tamika R.], 73 AD3d 428,
428-429 [2010], lv dismissed 15 NY3d 766 [2010];
Matter of Devon Dupree F., 298 AD2d 103 [2002]; Matter of Laura Mariela R., 302 AD2d 300 [2003]). Her explanation that the
children's placement in the kinship foster home of her grandmother led her to
believe that she would be able to have the children returned to her once she
gets her life together inadequately explains why she was unable to attend the
hearing. [*2]
Appellant
also failed to substantiate her defense that she was unable to visit the
children during the relevant six-month period because she was in a drug
treatment program and her grandmother refused to let her see the children when
she was in a better position to care for them (see Matter of Derrick T., 261
AD2d 108 [1999]). The evidence submitted indicates that she started the drug
treatment program on October 28, 2009, well after the relevant period of May
28, 2008 through November 28, 2008.
The
post-termination change in the children's foster situation does not warrant
remitting the matter to Family Court for a new dispositional hearing to
consider whether terminating appellant's parental rights is still in the
children's best interests (cf. Matter of Arthur C., 66 AD3d 1009 [2009]).
Nothing indicates that appellant had completed any of the drug, psychotherapy,
and vocational training programs that she began in late 2009 and early 2010,
and neither appellant nor the children's attorney has rebutted the agency's
contention that appellant has not been in contact with the children for years.
That none of appellant's relatives are in a position to adopt the children, and
that the children are currently residing in a non-kinship foster home, does not
alone warrant the conclusion
that returning them to appellant would serve their best
interests.
To
the extent appellant appeals from the two orders of disposition, no appeal lies
from orders entered on default (see Matter of Anthony M.W.A. [Micah W.A.], 80
AD3d 476 [2011]).
THIS
CONSTITUTES THE DECISION AND ORDER
OF
THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:
SEPTEMBER 27, 2011
CLERK