| Matter of Sarah A. |
| 2009 NY Slip Op 02022 [60 AD3d 1293] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Sarah A., an Infant. Erie County Department ofSocial Services, Respondent; Wayne A., Appellant. |
—[*1] Joseph T. Jarzembek, Buffalo, for petitioner-respondent. David C. Schopp, Law Guardian, the Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D.Halvorsen of counsel), for Sarah A.
Appeal from an order of the Family Court, Erie County (Margaret O. Szczur, J.), enteredJanuary 4, 2008 in a proceeding pursuant to Social Services Law § 384-b. The orderdenied the motion of respondent to vacate a default order of fact-finding and dispositionterminating his parental rights.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is granted, the order entered January 18, 2007 is vacated, and thematter is remitted to Family Court, Erie County, for a hearing on the petition.
Memorandum: Respondent father appeals from an order denying his motion "to Reopen aFinding by Default Terminating Parental Rights" with respect to his daughter based uponfindings that he abandoned and permanently neglected her. We agree with the fatherthat Family Court erred in denying his motion. We conclude that the court violated the father'sfundamental right to due process by failing to conduct either a fact-finding hearing or "inquest"before making its findings of abandonment and permanent neglect, regardless of the father'sdefault status on the scheduled hearing date. Specifically, we note that "[a]ll proceedings toterminate parental rights . . . must include a fact finding hearing where the Judge ofthe Family Court must determine that the parent is guilty of some fault, either lack of visitationand contact in the case of abandonment, or lack of planning in the case of permanent neglect"(Carrieri, Practice Commentaries, McKinney's Cons Laws of NY, Book 52A, Social ServicesLaw § 384-b, at 258). Here, although a fact-finding hearing was scheduled, no hearing wasconducted when the father did not appear. Indeed, petitioner offered no evidence at thescheduled fact-finding hearing to support its petition, and the record thus is devoid of anyevidence that the father "is guilty of some fault" to support any such determination by the court(id.), or that petitioner engaged in the requisite diligent efforts to strengthen therelationship between the father and his daughter (see Matter of Kyle K., 49 AD3d 1333, 1335 [2008], lv denied10 NY3d 715 [2008]; see also Social Services Law § [*2]384-b [7] [f]). We therefore reverse the order, grant the father'smotion, vacate the default order of fact-finding and disposition, and remit the matter to FamilyCourt for a hearing on the petition.
With respect to the remaining contentions of the father, we conclude that he failed todemonstrate that he was prejudiced by his attorney's alleged ineffective assistance (seeMatter of James R., 238 AD2d 962, 963 [1997]), and that there is nothing in the record tosupport his contention that the Law Guardian was ineffective. Present—Smith, J.P.,Centra, Peradotto and Gorski, JJ.