In this termination of parental rights proceeding, the putative father, Tyriek H.^[FN1], moves to "reopen" the fact finding hearing to cross examine the caseworker and to present a defense to the petition. The petitioning agency and the attorney for the three children oppose the motion.

The matter was scheduled for trial against Mr. H. on April 30, 2013 at 10:30am time certain. Mr. H. was represented by assigned counsel.^[FN2] There was no appearance by Mr. H. on [*2]that date. Counsel for Mr. H. stated that his client was released from prison and that he came to counsel's office on April 18, 2013 to discuss the case. At approximately 10:45am, the court placed the matter on recall so that counsel could go and check the security line in the lobby to ascertain if his client was not present in court because he was on the line. When the matter was recalled, counsel indicated that he could not locate Mr. H. on the line, and that he reached out to and spoke to Mr. H.'s girlfriend, however she indicated that she was not with him. There being no legal excuse for the non appearance of Mr. H., the court proceeded to inquest. The court reserved decision at the end of the hearing and adjourned the matter to June 6, 2013.

In a written decision dated May 10, 2013, the court found that the agency established by clear and convincing evidence that there is no male entitled to notice under DRL §111-a and no male whose consent is required under DRL §111(1)(d). The court further determined that even if it were to find that the putative father, Tyriek H.'s consent was required for the adoption of the children, the evidence established the subject children were permanently neglected by Mr. H. as defined by SSL §384-b(7).^[FN3] On May 21, 2013, Mr. H. filed the instant motion to "re-open" the fact finding hearing. On May 29, 2013, the return date of the motion, the court gave all counsel an opportunity to file supplemental papers in light of the court's decision on May 10, 2013.^[FN4] Counsel for Mr. H. filed a supplemental attorney affirmation which reiterates the arguments contained in his original moving papers.

Although counsel does not state a statutory basis for the relief requested, the court is deeming the instant motion as a motion to vacate a default pursuant to CPLR §5105(a)(1).A parent seeking to vacate a default in a termination of parental rights proceeding must establish a reasonable excuse for the default, and a potentially meritorious defense to the relief sought in the petition. See CPLR §5015(a)(1); Matter of Annette J.S.J.,106 AD3d 1087 (2nd Dep't 2013); Matter of Niaja A.W., 100 AD3d 1009 (2nd Dep't 2012); Matter of Daniel Marcus Y., 77 AD3d 843 (2nd Dep't 2010). It is well settled that the determination of whether to relieve a party of a default is a matter left to the sound discretion of the Family Court. Matter of Annette J.S.J., 2013 NY Slip Op 03838 (2nd Dep't 2013); Matter of Niaja A.W., 100 AD3d 1009 (2nd Dep't 2012); Matter of Daniel Marcus Y., 77 AD3d 843 (2nd Dep't 2010).

Mr. H. states, in his affidavit, that on April 30, 2013, he arrived at the Family Court prior [*3]to the scheduled 10:30am hearing time, but it took him over one hour to get through the security line and that he did not reach the courtroom until after 11:30am, after the case was already over. Mr. H. further asserts that the children have been living with his mother in foster care since 2009 and that he lived with his mother prior to being incarcerated from May 2011-April 2013. He claims that when he was incarcerated, he was still able to speak to the children daily, and that now that he is released, his "plans are to take back custody of the children." Mr. H. further claims that he "took them to the movies and other places and participated in taking care of them." Mr. H. admits that he is not entitled to notice of the proceedings pursuant to DRL §111-a(2)(a-h), but argues that he is a consent father pursuant to DRL §111(1)(d).

The agency argues that even if the court were to consider Mr. H.'s absence in court on April 30, 2013 as excusable, the court must deny the motion as Mr. H. has failed to present a meritorious defense. The agency submits that Mr. H. does not meet any legal indicia of fatherhood pursuant to DRL §111-a and therefore notice to him of the adoption proceeding is not required. The agency also contends that Mr. H. has not presented a meritorious defense to the permanent neglect cause of action. The attorney for the children makes similar arguments in her affirmation in opposition to the motion.

Although Mr. H. does not attach any documentary exhibits to support his claim that he missed the court hearing because he was waiting in the security line, the court is cognizant that the security line was extremely long on April 30, 2013 and recognizes that this alone may constitute a reasonable excuse for the default. See Matter of Tahanie S., 97 AD3d 751 (2nd Dep't 2012) (father's failure to appear at Article 10 fact finding not willful as father relied on adjournment slip that contained the incorrect date). However, the case law is clear that the inquiry does not end there. In order to prevail on a motion to vacate a default, the moving party must establish both a reasonable excuse for the default as well as a meritorious defense. The court finds that Mr. H. has failed to make any showing of a meritorious defense. Conclusory assertions in moving papers are insufficient to justify vacating the default. Matter of Iris R., 295 AD2d 521 (2nd Dep't 2002). General unsubstantiated statements are also insufficient to establish a meritorious defense. Matter of Lenea'jah F., 105 AD3d 514 (1st Dep't 2013).

First, Mr. H. concedes that he is not legally entitled to notice because he does not fall into any of the categories listed under DRL §111-a(2)(a-h)^[FN5]. Therefore, there is no dispute that there is no meritorious defense on the notice father issue.

Furthermore, the moving papers do not establish that Mr. H.'s consent to adoption is [*4]required under DRL §111(1)(d). The consent of a biological father, of a child born outside of marriage, is only required if the father has maintained a substantial and continuous relationship with the child as manifested by (1) paying financial support in a fair and reasonable sum according to the father's means and (2) the father's visiting the child at least monthly or regular communication with the children. DRL §111(1)(d). Matter of Charle Chiedu E., 87 AD3d 1140 (2nd Dep't 2011) (Family Court's determination that the consent of the father was required not supported by the record before it because biological father failed to meet burden of establishing payment of support and communication with the child). The Court of Appeals has ruled that whether the biological father has satisfied the financial support provision of the statute is a threshold determination that must be made to establish his right of consent for the adoption. Matter of Andrew Peter H.T., 64 NY2d 1090 (1985). It is only after the biological father establishes that his consent is required that the court proceeds to determine the underlying cause of action. Id. at 1091. In fact, the agency does not even have to prove a ground for terminating the father's parental rights if the record establishes that the father was not entitled to consent status under DRL §111(1)(d). See Matter of Kasiem H., 230 AD2d 796 (2nd Dep't 1996). However, it is not inconsistent for the Family Court to make a threshold determination that a father's consent is not required, but also make an alternative finding of abandonment. Matter of Spencer Isaiah R., 78 AD3d 561 (1st Dep't 2010); Matter of Jayquan J., 77 AD3d 947 (2nd Dep't 2010).

The fact that a father has been incarcerated for a period of time prior to the filing of the petition does not absolve the father of his responsibility to support and maintain communication with the children. Matter of Sharissa G., 51 AD3d 1019 (2nd Dep't 2008) (rejecting father's claim that the agency had a responsibility to locate him while he was incarcerated and finding that father's consent to adoption of children was not required); see also Matter of Dakiem M., 94 AD3d 1362 (3rd Dep't 2012) (incarcerated father failed to supply proof of financial support or an inability to provide support). Mr. H. also offered no objective evidence to support his claim that he had regular contact with the children. Matter of Marie Luz C., 6 AD3d 304 (1st Dep't 2004). Mr. H.'s assertions that he took the children to the movies and other places does not rise to the level of financial support in a fair and reasonable sum based on the father's means. Matter of Maxamillian, 6 AD3d 349 (1st Dep't 2004) (father's evidence that he purchased diapers, food and toys for the child during the first 18 months of the child's life with no evidence that he paid anything for the 5 ½ years after was not sufficient to establish the threshold issue of consent).

Similarly, Mr. H.'s conclusory assertions that the caseworker "did not do anything to help or assist me during the time the case was proceeding in Court against the mother" is insufficient to establish a defense. The credible testimony of the caseworker, Rose A., established that Mr. H. failed to contact the agency for the two years prior to the filing of the instant proceedings. Mr. H. does not challenge this in his moving papers. Ms. A. further testified that Mr. H. never came to the agency with regards to the children and did not pay financial support. Therefore, the court finds that Mr. H. has failed to establish that he has a meritorious defense to the claim that his consent to adoption is not required under DRL §111(1)(d).

Even if the court were to find that Mr. H. has raised a meritorious defense on the consent father issue, the court would find that Mr. H. has failed to raise a meritorious defense to the permanent neglect claim. The caseworker, Ms. A., testified credibly that she has been the [*5]children's caseworker since they entered foster care in 2009. Ms. A. stated that her last contact with Mr. H. prior to the April 30, 2012 filing date of the instant petition, was on March 24, 2010 where Mr. H. refused to speak to the caseworker. After that March 24, 2010 meeting, Mr. H. failed to keep Ms. A. apprised of his whereabouts. Mr. H.'s assertions that he lived with the children prior to his two year incarceration does not constitute a meritorious defense to permanent neglect as defined in SSL §384-b(7). Nor does his unsupported assertion that he spoke to the children daily during his incarceration. Mr. H. has failed to present any objective evidence to counter the agency's claim that for over one year prior to the filing date of the petition, he failed to keep the agency apprised of his whereabouts and failed to plan for the future of the children.

Finally, Mr. H.'s application, in the alternative, to participate at the dispositional hearing as it relates to the respondent mother and offer testimony regarding the best interests of the children, must be denied. While the court is sympathetic to the reality that the children are living with Mr. H.'s mother and there is a likelihood that Mr. H. will have ongoing contact with the children, that is not relevant to the legal issues that are before the court. Mr. H. has already conceded that he is not a notice father under DRL §111-a(2). Since the court has determined that there is no male entitled to notice and no male whose consent to adoption is required, Mr. H. does not have standing to participate in the dispositional phase of the respondent mother's case. The court's alternative finding of permanent neglect against Mr. H. does not confer standing upon him to participate at disposition.

These three children have been in foster care for nearly four years. The best interests of the children requires permanency, and they will be prejudiced by any further delay in these proceedings. The dispositional hearing with regards to the respondent mother will commence on August 5, 2013 at 10:00am time certain.

Accordingly, the motion is denied in its entirety. This constitutes the decision and order of the court.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

Dated: July 3, 2013

______________________________

Hon. Lillian Wan, JFC