        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

976
CAF 10-00594
PRESENT: SMITH, J.P., CENTRA, CARNI, GREEN, AND MARTOCHE, JJ.


IN THE MATTER OF LASTANZEA L., IVANNA L.,
SAMYA L., DEAJAH L., AND SHAVIONTAE L.
--------------------------------------------         MEMORANDUM AND ORDER
ONEIDA COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;

LAKESHA L., RESPONDENT-APPELLANT.
(APPEAL NO. 2.)


PETER J. DIGIORGIO, JR., UTICA, FOR RESPONDENT-APPELLANT.

JOHN A. HERBOWY, UTICA, FOR PETITIONER-RESPONDENT.

JOHN G. KOSLOSKY, ATTORNEY FOR THE CHILDREN, UTICA, FOR LASTANZEA L.,
IVANNA L., SAMYA L., DEAJAH L., AND SHAVIONTAE L.


     Appeal from an order of the Family Court, Oneida County (Randal
B. Caldwell, J.), entered February 9, 2010 in a proceeding pursuant to
Social Services Law § 384-b. The order denied the motion of
respondent to vacate a prior order entered upon her default.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In appeal No. 1, respondent mother appeals from an
order entered upon her default that, inter alia, revoked a suspended
judgment and terminated her parental rights with respect to the five
children who are the subjects of this proceeding. The mother failed
to appear at the hearing on the petition seeking revocation of the
suspended judgment and, although her attorney was present at the
hearing, he did not participate therein. “[I]n light of her
[attorney’s] election to stand mute,” the mother’s unexplained failure
to appear at the hearing constituted a default (Matter of Miguel M.-
R.B., 36 AD3d 613, 614, lv dismissed 8 NY3d 957). We therefore
dismiss the appeal from the order in appeal No. 1 (see Matter of Tiara
B. [appeal No. 2], 64 AD3d 1181, 1182).

     In appeal No. 2, the mother appeals from an order denying her
motion to vacate the order in appeal No. 1 entered upon her default.
Family Court properly exercised its discretion in denying the motion.
Contrary to the mother’s contention, her incarceration at the time of
the hearing does not constitute a reasonable excuse for her default
because she failed to provide a credible explanation for her failure
to advise her attorney, the court or petitioner of her unavailability
                                 -2-                           976
                                                         CAF 10-00594

(see Matter of Fa’Shon S., 40 AD3d 863; Matter of Ashley Marie M., 287
AD2d 333). The mother also failed to demonstrate a meritorious
defense or to explain her 11-month delay in seeking to vacate the
order in appeal No. 1 (see Matter of Tashona Sharmaine A., 24 AD3d
135, lv denied 6 NY3d 715; Ashley Marie M., 287 AD2d at 334).




Entered:   September 30, 2011                  Patricia L. Morgan
                                               Clerk of the Court
