SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
182
CAF 10-01967
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND LINDLEY, JJ.
IN THE MATTER OF KENNETH L.
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JEFFERSON COUNTY DEPARTMENT OF SOCIAL SERVICES, MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;
MICHELLE B., RESPONDENT-APPELLANT.
JOHN M. MURPHY, JR., PHOENIX, FOR RESPONDENT-APPELLANT.
CARACCIOLI & NELSON, PLLC, WATERTOWN (KEVIN C. CARACCIOLI OF COUNSEL),
FOR PETITIONER-RESPONDENT.
SUSAN A. SOVIE, ATTORNEY FOR THE CHILD, WATERTOWN, FOR KENNETH L.
Appeal from an order of the Family Court, Jefferson County
(Richard V. Hunt, J.), entered August 30, 2010 in a proceeding
pursuant to Family Court Act article 6. The order denied the motion
of respondent to vacate an order terminating her parental rights upon
her default.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order denying her
motion to vacate a prior order entered upon her default that
terminated her parental rights with respect to the subject child on
the ground of permanent neglect. The mother contends that Family
Court erred in reinstating the permanent neglect petition on the
ground that there had been a substantial failure of a material
condition of her judicial surrender of the child. We conclude that
the mother waived that contention, inasmuch as her attorney conceded
that the petition may be reinstated (see generally Matter of Brayanna
G., 66 AD3d 1375, lv denied 13 NY3d 714). Contrary to the further
contention of the mother, her attorney’s failure to contest
reinstatement of the petition does not constitute ineffective
assistance of counsel. The mother’s attorney “cannot be deemed
ineffective for failing to make a motion or response to a motion that
is unlikely to be successful” (Matter of Jamaal NN., 61 AD3d 1056,
1058, lv denied 12 NY3d 711) and, here, the court properly granted
petitioner’s motion to reinstate the petition. We also reject the
mother’s contention that she was denied effective assistance of
counsel based on, inter alia, her attorney’s failure to request an
adjournment when the mother did not appear at the fact-finding and
dispositional hearing. The court delayed the hearing for 45 minutes
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CAF 10-01967
and, when the mother still failed to appear, her attorney asked to be
relieved from his representation of the mother in order to preserve
the mother’s opportunity to move to vacate any default order entered
against her. We conclude that such tactical decision on the part of
the mother’s attorney does not constitute ineffective assistance of
counsel (see Matter of Geraldine Rose W., 196 AD2d 313, 319-320, lv
dismissed 84 NY2d 967; see generally Matter of Derrick C., 52 AD3d
1325, 1326, lv denied 11 NY3d 705).
Finally, we conclude that the court properly exercised its
discretion in denying the mother’s motion to vacate the order entered
upon her default. Contrary to the mother’s contention, her allegation
in support of the motion that she missed the hearing because her
vehicle broke down and she could not find alternative transportation
does not constitute a reasonable excuse for her default because she
failed to provide a credible explanation for her failure to advise the
court or petitioner of her unavailability (see Matter of Lastanzea L.,
87 AD3d 1356). Although the mother alleged that she contacted her
attorney, he stated on the record that he did not receive any
communication from the mother. The mother also failed to demonstrate
a meritorious defense to the petition (see Matter of Alexis C.R., 71
AD3d 1511, lv dismissed 14 NY3d 922; Matter of Zabrina M., 17 AD3d
1132, lv denied 5 NY3d 710), and she failed to explain her four-month
delay in seeking to vacate the order entered upon her default (see
Lastanzea L., 87 AD3d 1356; Matter of Tashona Sharmaine A., 24 AD3d
135).
Entered: February 10, 2012 Frances E. Cafarell
Clerk of the Court