In re Tyieyanna L.

94 A.D.3d 494, 941 N.Y.S.2d 498

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 2012
• Status: Published

Opinion

Order, Family Court, New York County (Jody Adams, J.), entered on or about March 8, 2011, which denied respondent mother’s motion to vacate orders of disposition, same court and Judge, entered on or about July 14, 2010, upon her default, which, upon findings of permanent neglect, terminated her parental rights to the subject children and committed the custody and guardianship of the children to petitioner agency and the Commissioner of Social Services for the purpose of adoption, unanimously affirmed, without costs.

Respondent failed to demonstrate a reasonable excuse for her default and a meritorious defense to the petition (see CFLR 5015 [a] [1]; Matter of Calvin S., 47 AD3d 491 [2008]; Matter of Jones, 128 AD2d 403 [1987]). She submitted an affidavit explaining that she had a severe toothache on the day of the hearing and a letter from her dentist stating that she was in his office on that day and was referred to an oral surgeon. However, she failed to notify her counsel, the court, or the agency in advance that she would not appear at the hearings, although her condition did not prevent her from doing so (see Matter of Amirah Nicole A. [Tamika R.], 73 AD3d 428 [2010], lv dismissed 15 NY3d 766 [2010]; Matter of Ciara Lee C. [Lourdes R.], 67 AD3d 437 [2009], lv dismissed 14 NY3d 756 [2010]).

There is no evidence that respondent completed the programs called for in her plan within the relevant one-year period so as to demonstrate a meritorious defense to the allegations of permanent neglect (see Matter of Gloria Marie S., 55 AD3d 320, 321 [2008], lv dismissed 11 NY3d 909 [2009]). Her incarceration during that period did not excuse her from the requirement that she realistically plan for her children’s future (see Matter of Jayson M., 177 AD2d 396 [1991]). Concur — Andrias, J.E, Friedman, Acosta, Freedman and Richter, JJ.