

Matter of Rodney W. v Josephine F. (2015 NY Slip Op 02426)





Matter of Rodney W. v Josephine F.


2015 NY Slip Op 02426


Decided on March 24, 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 March 24, 2015

Tom, J.P., Renwick, DeGrasse, Manzanet-Daniels, Clark, JJ.


14609

[*1] In re Rodney W., Petitioner-Respondent,
vJosephine F., Respondent-Appellant.


Andrew J. Baer, New York, for appellant.
Steven N. Feinman, White Plains, for respondent.
Carol Kahn, New York, attorney for the child.

Order, Family Court, Bronx County (Karen I. Lupuloff, J.), entered on or about November 18, 2013, which denied respondent mother's motion to vacate an order of custody entered in favor of petitioner father upon the mother's default, unanimously affirmed, without costs.
The court properly denied the mother's motion to vacate, as the record supports the court's finding that the mother willfully defaulted at the consolidated hearing on the custody petition and the dispositional phase of the neglect petition (see Family Ct Act §§ 1042, 1055-b; see also Matter of Rozelle Tyrone Lee P., 19 AD3d 237, 238 [1st Dept 2005], lv dismissed 5 NY3d 839 [2005]). The mother failed to explain in her motion papers why she stormed out of the courtroom and refused to participate in the proceedings (see Rozelle, 19 AD3d at 238).
Even if the court should have analyzed the motion to vacate pursuant to CPLR 5015(a), the mother failed to provide a reasonable excuse for her default and a meritorious defense to the custody petition (see Matter of Azmara N.G. v Jessica Stephanie S., 110 AD3d 617, 618 [2013]). The record shows that the father has received training to care for the special-needs child and that the child is thriving in his care. By contrast, neglect findings have been entered against the mother with respect to all nine of her children, she failed to demonstrate any ability to care for the child's special needs, she failed to comply with court-ordered services, she has been disruptive and disrespectful in court proceedings, and she failed to cooperate with and has threatened several attorneys assigned to her.
The mother failed to preserve her due process arguments, and we decline to consider them. As an alternative holding, we reject her arguments on the merits, as her own misconduct [*2]toward her attorneys resulted in their being relieved as counsel, and she effectively exhausted her right to assigned counsel (see People v Lineberger, 282 AD2d 369, 370 [1st Dept 2001]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 24, 2015
CLERK


