| Matter of Eileen R. (Carmine S.) |
| 2010 NY Slip Op 09427 [79 AD3d 1482] |
| December 23, 2010 |
| Appellate Division, Third Department |
| In the Matter of Eileen R. and Others, Children Alleged to beAbandoned. Broome County Department of Social Services, Respondent; Carmine S.,Appellant. |
—[*1] Kuredin V. Eytina, Broome County Department of Social Services, Binghamton, for respondent. Randolph V. Kruman, Cortland, attorney for the children.
McCarthy, J. Appeal from an order of the Family Court of Broome County (Charnetsky, J.),entered December 16, 2009, which granted petitioner's application, in a proceeding pursuant to SocialServices Law § 384-b, to adjudicate respondent's children to be abandoned, and terminatedrespondent's parental rights.
Respondent is the father of four children who entered petitioner's care in February 2008. Petitionercommenced this abandonment proceeding in January 2009. Respondent was unable to attend theproceedings because he was incarcerated in Pennsylvania, so Family Court assigned counsel whoprovided representation throughout the hearing. Petitioner presented proof establishing that respondenthad made no attempt to contact the children, petitioner or the foster parents during the relevantsix-month period and had not been prevented from doing so. At the conclusion of the hearing, the courtfound that the children were abandoned and terminated respondent's parental rights. Respondent nowappeals, arguing that his counsel was ineffective and that his right to due process of law was violatedbecause he was prevented from participating [*2]in the terminationhearing.
We agree. A parent's right to custody of his or her children is "an important interest that undeniablywarrants . . . protection" (Lassiter v Department of Social Servs. of Durham Cty.,452 US 18, 27 [1981] [internal quotation marks and citation omitted]). The Due Process Clauses ofboth the US and NY Constitutions protect a parent's right to be present throughout a proceedingimplicating the termination of parental rights (see Matter of Casey L. [Joseph L.], 68 AD3d 1497, 1498 [2009];see also US Const 5th Amend; NY Const, art I, § 6). This right to be present, however,is not absolute and must be balanced with the child's right to a prompt and permanent adjudication(see Matter of James Carton K., 245 AD2d 374, 377 [1997], lv denied 91 NY2d809 [1998]).
Due process considerations are relevant to protecting the rights of parents who are unable, becauseof their incarceration, to personally attend proceedings concerning parental rights. Some examples ofsteps that courts have taken to protect the due process rights of unavoidably absent parents includepermitting telephonic testimony or attendance, testimony by other means such as depositions, periodicadjournments to permit the incarcerated parent to review transcripts of testimony, and appointingcounsel who can fully participate in the proceeding on behalf of the parent (see generally Matter of Danielle M., 26AD3d 748, 749 [2006], lv denied 7 NY3d 703 [2006]; Matter of Ramon C.,261 AD2d 205 [1999]; Matter of James Carton K., 245 AD2d at 376-377). If suchalternative means of participation can be implemented without unduly delaying the proceeding, the courtis able to simultaneously protect a parent's right to be present and the child's right to a prompt andpermanent adjudication.
Family Court assigned counsel to represent respondent. Indigent parents facing termination ofparental rights are entitled to the assignment of counsel (see Family Ct Act §§261, 262 [a] [iv]), and such counsel must provide effective assistance comparable to that afforded tocriminal defendants (see Matter of BrendenO., 20 AD3d 722, 723 [2005]). Once counsel is assigned, it is the duty of that attorney toprotect the client's rights, but the court is obliged to ensure that the proceeding is fair and that dueprocess is afforded to an individual whose parental rights may be terminated (cf. Hurrell-Harring v State of New York, 15NY3d 8, 26 [2010] [reiterating that "enforcement of a clear constitutional or statutory mandate isthe proper work of the courts"]). While this Court has found no due process violation in a case wherethe parent "was represented at the hearing by counsel who fully participated therein" (Matter of Keyanna AA., 35 AD3d1079, 1081 [2006]), respondent's counsel did not meet that standard, resulting in a violation ofrespondent's due process rights.
Before counsel was even assigned here, Family Court had predetermined that respondent couldnot testify telephonically. The court allowed respondent to make an initial appearance by telephone forarraignment on the petition, when he was unrepresented, but informed respondent that the court did not"allow testimony over the telephone" and would therefore proceed in his absence and "make a decisionbased on the testimony presented by [petitioner]."[FN1]Such an announcement by the court—that it would make a decision based on [*3]petitioner's evidence alone—indicated that respondent would notbe permitted to present any evidence; this was improper and contrary to the fundamental aspects of ouradversary system. Although the court made these determinations before counsel's assignment, counseldid not later object or request that respondent be able to present evidence or his own testimony, eitherby telephone, deposition or any other means. Counsel also did not attempt to utilize other permissivealternatives designed to reduce the prejudice caused by respondent's absence, such as requestingadjournments to permit counsel to review transcripts of testimony with respondent prior tocross-examining petitioner's witnesses. Counsel attempted to cross-examine the witnesses, but he wasapparently unable to comprehensively do so without respondent's input.
Had counsel requested adjournments or other opportunities to confer with respondent during thehearing, counsel may have been better equipped to conduct cross-examination. Although Family Courtgranted two adjournments, under the circumstances here those breaks were insufficient to protectrespondent's rights. Unlike Matter of James Carton K. (245 AD2d at 375), where the courtgranted extensive adjournments after the petitioner presented its testimony to enable the incarceratedrespondent to review transcripts prior to cross-examination, the adjournments afforded to respondenthere did not serve that purpose. The first adjournment was granted before the hearing even beganbecause respondent's counsel was recently assigned, was unaware that his client was still incarceratedand expected respondent to be present; he therefore needed time to prepare for the hearing. Thesecond adjournment was granted because, during disclosure, petitioner did not supply certain records;this adjournment should have been granted even if respondent was present at the hearing. While onewitness had given direct testimony prior to the second adjournment, counsel did not request thattranscripts be supplied so that respondent could review that testimony. The remaining testimony wasgiven without further adjournments. Other than for the one witness, counsel was unable to discuss thedirect testimony with respondent to prepare for cross-examination of petitioner's witnesses.[FN2]
Not only was respondent prevented from adequately defending himself by effectivelycross-examining witnesses, he was also prevented from putting on a case.[FN3]Counsel did not present any evidence on respondent's behalf. Respondent's unsworn statements atarraignment (see n 1, supra) and some of counsel's questions demonstrate thatrespondent may have been the only witness who could support his defense that he had attempted tocontact the children. Yet respondent was unable to present that defense due to Family Court's apparentblanket policy and counsel's failure to challenge that policy or advocate for respondent's right to presenthis case in some feasible manner.
Contrary to Family Court's blanket policy against telephonic testimony, such is permitted under theFamily Ct Act in both child support and paternity proceedings where an [*4]incarcerated parent cannot be present (see Family Ct Act§ 433 [c] [ii]; § 531-a [a] [ii]; § 580-316 [f]; see also 22 NYCRR205.44). Even though these statutes do not apply to the type of hearing held in this matter—anddo not mandate such accommodations, but are only permissive, in proceedings where they doapply—courts have similarly authorized the use of testimony by telephone, where available andfeasible, to protect the due process rights of parents who are physically absent from terminationproceedings (see Matter of Robert DavidL., 7 AD3d 529, 530 [2004], lv denied 3 NY3d 606 [2004]; Matter of JamesCarton K., 245 AD2d at 375-376; seealso Matter of Jasper QQ., 64 AD3d 1017, 1019 [2009], lv denied 13 NY3d 706[2009] [denying due process claim in abandonment proceeding, noting that the respondent was offeredchance to appear telephonically]). While Family Court is not required to permit testimony by telephoneor other electronic means in any particular case, we do not condone any court implementing a blanketpolicy against such a practice rather than carefully considering the available options based upon thecircumstances of each individual case.
Unfortunately, counsel acquiesced in this policy. Counsel not only failed to object or make arequest for some accommodation, he essentially waived his client's right to be present, stating, "I've hadcontact with [respondent] and he understands, judge, that this matter is going forward without hisparticipation." Had counsel objected and provided some argument against the blanket policy, FamilyCourt would have had an opportunity to reevaluate its policy and work with counsel to implement areasonable method to accommodate respondent's participation despite his physical absence. By notobjecting or seeking some accommodation, counsel failed to protect respondent's rights.
Counsel missed another opportunity to protect his client's rights by ignoring Family Court's actionsin response to its own prior order. The court not only allowed respondent to appear by telephoneinitially—establishing the availability and feasability of that option—but also issued anorder authorizing respondent to appear by telephone on the first day scheduled for the hearing. On thatdate, however, Family Court abruptly changed its position, stated that the order was "inadvertentlyunfortunately" issued, failed to contact respondent at the scheduled time and made no further efforts tocomply with the order. The court did not explain why the order was initially issued, why its issuanceconstituted a mistake or why the court was not going to comply with its own order. Despite beingaware of this order, counsel did not ask the court to comply with it, seek another order for his client'stestimony or even object to the court's unexplained treatment of its own order. Again, counsel's inactiondeprived respondent of an opportunity to participate in the hearing.
Appellate courts have denied due process violation claims in Family Court proceedings only wherethe hearing court ensured that an unavoidably absent parent had some opportunity to participate in ameaningful way (see Matter of Eric L.,51 AD3d 1400, 1401 [2008], lv denied 10 NY3d 716 [2008]; Matter of RobertDavid L., 7 AD3d at 530; Matter of James Carton K., 245 AD2d at 375). DespiteFamily Court's assignment of counsel, respondent did not enjoy a meaningful opportunity to participatein this case. By neglecting to seek any accommodations to protect respondent's right to be present orparticipate in some way, counsel's representation was less than meaningful and respondent wasprejudiced by counsel's ineffectiveness (seeMatter of Templeton v Templeton, 74 AD3d 1513, 1513-1514 [2010]; Matter of Martinv Martin, 46 AD3d 1243, 1246-1247 [2007]; compare Matter of Eric G., 59 AD3d 785, 787-788 [2009]). Becauserespondent's counsel cannot be deemed to have "fully participated" in the hearing under thecircumstances here, the assignment of counsel was insufficient to protect respondent's due processrights (compare Matter of Keyanna AA., 35 AD3d at 1081). Accordingly, respondent is [*5]entitled to a new hearing, with new counsel assigned to represent him.
Spain, J.P., Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the order is reversed, on thelaw, without costs, and matter remitted to the Family Court of Broome County for further proceedingsnot inconsistent with this Court's decision.
Footnote 1: During this conversation with FamilyCourt, respondent made unsworn statements that he did not want to give up his parental rights and hadmade several unsuccessful attempts to contact his children through letters. These statements were notaddressed by the court.
Footnote 2: Indeed, the record does not reflectwhether counsel actually discussed the testimony of that one witness with respondent during theadjournment.
Footnote 3: It is therefore not surprising thatpetitioner was able to establish that respondent had abandoned his children. Understandably,respondent makes no substantive arguments on appeal.