In re Harriett S.

Appellate Division of the Supreme Court of New York

In re Harriett S.

293 A.D.2d 417, 741 N.Y.S.2d 216, 2002 N.Y. App. Div. LEXIS 4373

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 30, 2002

StatusPublished

Cited by2 cases

This text of 293 A.D.2d 417 (In re Harriett S.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Harriett S., 293 A.D.2d 417, 741 N.Y.S.2d 216, 2002 N.Y. App. Div. LEXIS 4373 (N.Y. Ct. App. 2002).

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Opinion

—Order, Family Court, Bronx County (Alma Cordova, J.), entered on or about April 15, 1998, which, insofar as appealed from, denied respondent’s motion to vacate an order of disposition, entered on or about January 12, 1998, terminating respondent’s parental rights to the subject child upon a finding of abandonment, following respondent’s failure to appear at fact-finding and dispositional hearings, unanimously affirmed, without costs.

The motion was properly denied for failure to show a meritorious defense (CPLR 5015 [a] [1]; see, Matter of Derrick T., 261 AD2d 108). Respondent’s claim that he was unable to communicate with the agency and the child because he did not know and was unable to ascertain the child’s whereabouts was properly rejected by Family Court where, by respondent’s own account, his only attempts to locate the child were in occasional conversations he had with the child’s mother, who was not forthcoming, all of which occurred at least two years prior to the filing of the petition. Such perfunctory attempts to locate the child at best show only a subjective intent not to forego parental rights and are insufficient to overcome the presumption of abandonment raised by respondent’s failure to contact the agency or the child during the six-month period immediately preceding the filing of the petition (Social Services Law § 384-b [4] [b]; [5]; see, Matter of Baby Boy B., 262 AD2d 9, 10, citing, inter alia, Matter of Anthony M., 195 AD2d 315, 316). It is not a defense that the agency did not make a diligent search for respondent (Social Services Law § 384-b [5] [b]; see, Matter of Julius P., 63 NY2d 477, 481; Matter of Anthony M., supra at 317), and respondent does not show a meritorious defense with respect to the disposition (see, Matter of Kawari Claude C., 248 AD2d 158, 159). Concur—Williams, P.J., Tom, Mazzarelli, Andrias and Friedman, JJ.

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—Order, Family Court, Bronx County (Alma Cordova, J.), entered on or about April 15, 1998, which, insofar as appealed from, denied respondent’s motion to vacate an order of disposition, entered on or about January 12, 1998, terminating respondent’s parental rights to the subject child upon a finding of abandonment, following respondent’s failure to appear at fact-finding and dispositional hearings, unanimously affirmed, without costs.

The motion was properly denied for failure to show a meritorious defense (CPLR 5015 [a] [1]; see, Matter of Derrick T., 261 AD2d 108). Respondent’s claim that he was unable to communicate with the agency and the child because he did not know and was unable to ascertain the child’s whereabouts was properly rejected by Family Court where, by respondent’s own account, his only attempts to locate the child were in occasional conversations he had with the child’s mother, who was not forthcoming, all of which occurred at least two years prior to the filing of the petition. Such perfunctory attempts to locate the child at best show only a subjective intent not to forego parental rights and are insufficient to overcome the presumption of abandonment raised by respondent’s failure to contact the agency or the child during the six-month period immediately preceding the filing of the petition (Social Services Law § 384-b [4] [b]; [5]; see, Matter of Baby Boy B., 262 AD2d 9, 10, citing, inter alia, Matter of Anthony M., 195 AD2d 315, 316). It is not a defense that the agency did not make a diligent search for respondent (Social Services Law § 384-b [5] [b]; see, Matter of Julius P., 63 NY2d 477, 481; Matter of Anthony M., supra at 317), and respondent does not show a meritorious defense with respect to the disposition (see, Matter of Kawari Claude C., 248 AD2d 158, 159). Concur—Williams, P.J., Tom, Mazzarelli, Andrias and Friedman, JJ.

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293 A.D.2d 417, 741 N.Y.S.2d 216, 2002 N.Y. App. Div. LEXIS 4373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-harriett-s-nyappdiv-2002.

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