| Matter of Leala T. |
| 2008 NY Slip Op 07825 [55 AD3d 997] |
| October 16, 2008 |
| Appellate Division, Third Department |
| In the Matter of Leala T., a Child Alleged to be Permanently Neglected.Ulster County Department of Social Services, Respondent; Maribeth U.,Appellant. |
—[*1] Leslie Robinson, Ulster County Department of Social Services, Kingston (John Ferrera,Monticello, of counsel), for respondent. Lawrence Shelton, Law Guardian, Kingston.
Cardona, P.J. Appeal from an order of the Family Court of Ulster County (McGinty, J.), enteredNovember 19, 2007, which granted petitioner's application, in a proceeding pursuant to SocialServices Law § 384-b, to revoke a suspended judgment and terminate respondent's parentalrights.
In April 2007, Family Court adjudicated Leala T. (born in 2002) to be permanently neglected byrespondent, her mother. The court issued a suspended judgment mandating certain conditions(see Family Ct Act § 631 [b]), and informed respondent that failure to comply with theconditions could result in a final order terminating her parental rights. In August 2007, petitioner appliedto revoke the suspended judgment based upon alleged violations of the conditions and, following adispositional hearing, Family Court revoked that judgment and terminated respondent's parental rights.[*2]
On this appeal, respondent contends that Family Court violatedher due process rights by striking her direct testimony from the record after she failed to appear in courtto submit to cross-examination. We do not agree. After testifying on her own behalf on the first day ofthe hearing, the court directed respondent to appear the next morning for further examination as well ascross-examination. Respondent initially replied that she had a pain management appointment scheduledfor the morning; however, after the court instructed her to reschedule that appointment and appear incourt at 9:00 a.m., she agreed to do so. Nonetheless, that evening she called her counsel and left amessage stating that she would not be appearing in court the following morning because she was goingto the appointment. When she failed to appear, the court denied her counsel's request for anadjournment and granted petitioner's request to strike her direct testimony.
When a party, through no fault of its own, "is deprived of the benefit of the cross-examination of awitness," a court may strike that witness's direct testimony in whole or in part (Gallagher vGallagher, 92 App Div 138, 140 [1904]; see People v Cole, 43 NY 508, 512-513[1871]). Under the circumstances herein, which include respondent's willful disregard of Family Court'sexplicit direction to appear for cross-examination, her history of missing appointments, and thecredibility questions raised by her testimony, we are not persuaded that the court abused its discretionin striking her direct testimony (see Diocese of Buffalo v McCarthy, 91 AD2d 213, 220[1983], lv denied 59 NY2d 605 [1983]; compare Matter of Tequan R., 43 AD3d 673, 679 [2007]).
We are also unpersuaded by respondent's contention that, rather than revoke its suspendedjudgment, Family Court should have extended the time period pursuant to Family Ct Act § 633."[A] parent's noncompliance with the terms of the suspended judgment, if established by apreponderance of the evidence, may result in revocation of the judgment and termination of parentalrights" (Matter of Frederick MM., 23AD3d 951, 952 [2005] [citations omitted]; see Matter of Edward GG., 35 AD3d 1144, 1144-1145 [2006]). Thisrecord establishes that, in violation of the suspended judgment, respondent failed to keep petitionerapprised of her current address, missed visitations with the child, tested positive for drugs on more thanone occasion, violated an order of protection prohibiting respondent from possessing and testingpositive for drugs, missed mental health appointments, and was discharged from the Family TreatmentCourt based upon poor attendance and positive drug tests. Given respondent's noncompliance, FamilyCourt did not abuse its discretion by refusing to extend the suspended judgment or by revoking it(see Family Ct Act § 633 [f]).
Mercure, Spain, Lahtinen and Malone Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.