In re Michael David W.

Apr 12, 1984
Versions:101 A.D.2d 695
476 N.Y.S.2d 32
1984 N.Y. App. Div. LEXIS 18248

Order unanimously affirmed, without costs. Memorandum: The mother appeals from an order denying her motion to vacate orders committing guardianship and custody of two of her children to the Cayuga County Department of Social Services based on findings of permanent neglect after a hearing (Social Services Law, § 384-b, subd 4, par [d]; subd 7, par [a]). She claims to be entitled to a new fact-finding hearing under the “clear and convincing” standard of proof established in Santosky v Kramer (455 US 745) which was decided after the court issued its orders. Had the mother properly perfected her appeal from the orders, this court could have reviewed the record to determine whether the proof met the Santosky standard (see Matter of Michael B., 58 NY2d 71); there is no reason why we cannot do the same here, where the issue comes before us on appeal from a denial of a motion to vacate the orders. In denying the motion, Family Court found that its previous findings of permanent neglect were supported by “clear and convincing” evidence. On our study of the record, we agree that the elements of section 384-b (subd 7, par [a]) of the Social Services Law necessary to establish permanent neglect were proven with respect to both children by clear and convincing evidence. 11 The mother also argues that the court erred in proceeding with the hearing in her absence, when she failed to appear for the hearing date. The court, after noting that she had already requested five adjournments resulting in 10 months’ delay, found that her absence was voluntary. This finding is supported by the record and the mother does not now dispute it. Her only claim is that the court should have secured her presence by the issuance of a warrant; on this record the court’s omission to do so, particularly in the absence of a request by any party, was not an abuse of discretion (Family Ct Act, § 671, subd [a]). (Appeal from order of Cayuga County Family Court, Corning, J. — vacate order terminating parental rights.) Present — Dillon, P. J., Hancock, Jr., Callahan, Doerr and Moule, JJ.