Matter of Michael A.H. v Rosemary H.

Matter of Michael A.H. v Rosemary H. 2015 NY Slip Op 09170 Decided on December 10, 2015 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 December 10, 2015
Mazzarelli, J.P., Richter, Manzanet-Daniels, Kapnick, JJ.
16364

[*1] In re Michael A.H., Petitioner-Respondent,

v

Rosemary H., Respondent-Appellant.

Law Office of Kenneth Walsh, New York (Kenneth Walsh of counsel), for appellant.

Andrew J. Baer, New York, for respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Amy Hausknecht of counsel), attorney for the children.

Order, Family Court, New York County (Susan M. Doherty, Referee), entered on or about April 2, 2014, which denied respondent mother's motion to vacate a final order, entered upon her default, granting custody to petitioner father, unanimously affirmed, without costs.

The Family Court properly found that the mother failed to demonstrate both a reasonable excuse for her default and a meritorious defense to the father's custody petition (see CPLR 5015[a][1]; Matter of Ruth R. [Diana P.], 115 AD3d 531, 531 [1st Dept 2014]). The court reasonably found that, notwithstanding the mother's dental condition, she could have appeared for the custody hearing that had been scheduled for several months. The mother's note from her doctor did not substantiate her excuse, as it failed to specify when he examined her, what serious condition she suffered from, and why she could not appear.

Even if the mother's excuse were reasonable, the mother failed to proffer any evidence that would warrant a finding that the children's best interests would be served by denying the father's custody petition. The children had been removed from the mother's care following entry of neglect findings against her, and temporary custody was awarded to the father, who had received training to care for their special needs. The children were thriving in his care, and they expressed a strong desire to remain with him and not return to the mother. The mother failed to provide any basis for finding any change in her health or circumstances that would enable her to care for the children.

The mother failed to preserve her argument regarding the need for an evidentiary hearing, and, in any event, the argument is unavailing (see Matter of Cole v Cole, 88 AD3d 1104, 1104 [3d Dept 2011]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 10, 2015

CLERK