| Matter of Sonara HH. (Robert HH.) |
| 2015 NY Slip Op 03889 [128 AD3d 1122] |
| May 7, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Sonara HH., a Child Alleged to be PermanentlyNeglected. Schoharie County Department of Social Services, Respondent; Robert HH.,Appellant. |
Sandra M. Colatosti, Albany, for appellant.
David Lapinel, Schoharie County Department of Social Services, Schoharie, forrespondent.
Rachel Rappazzo, Schenectady, attorney for the child.
Garry, J.P. Appeals from an order and amended order of the Family Court ofSchoharie County (Bartlett III, J.), entered December 19, 2013 and January 10, 2014,which, in a proceeding pursuant to Social Services Law § 384-b, deniedrespondent's motion to vacate a default order entered against him terminating his parentalrights.
Respondent is the father of a child born in 2008. Respondent was incarcerated at thetime of the child's birth and remained incarcerated throughout the period of theunderlying court proceedings in Louisiana, with an anticipated release date in June 2016.The child was in her mother's custody until 2010, when she was removed and placed infoster care, and the mother thereafter executed a judicial surrender. In November 2012,petitioner commenced this permanent neglect proceeding seeking to terminaterespondent's parental rights and free the child for adoption. Respondent was personallyserved with notice of the proceeding in July 2013. Counsel appeared in Family Court onrespondent's behalf later in July, and the court scheduled a fact-finding hearing to be heldin October 2013. During the July 2013 appearance, respondent's counsel requested thatthe court make arrangements for respondent to appear by telephone at the Octoberhearing. The court [*2]declined to do so, advising that atelephone appearance would be permitted, but that arrangements should be made byrespondent or his counsel.
Respondent did not appear at the October 2013 hearing date, in person or bytelephone, but his counsel appeared and moved for an adjournment. Family Court deniedthe request, found respondent in default and, after an inquest, terminated his parentalrights. Thereafter, respondent submitted a pro se motion "to reconsider and/or appeal thedecision to terminate parental rights." The court treated this application as a motion tovacate the default judgment and, in an order and amended order, denied it. The fatherappeals from these orders.
A parent has a due process right to be present during proceedings to terminateparental rights, but that right "is not absolute and must be balanced with the child's rightto a prompt and permanent adjudication" (Matter of Eileen R. [Carmine S.], 79 AD3d 1482, 1483[2010]; see Matter of AriannaBB. [Tracy DD.], 110 AD3d 1194, 1195 [2013], lv denied 22 NY3d 858[2014]). When incarceration prevents a parent from attending proceedings related to hisor her parental rights, a court may protect the parent's due process rights throughalternative means, such as telephonic appearances, the appointment of counsel who canfully represent the parent, or adjournments to permit the parent to review transcripts andconsult with counsel, if such measures will not cause undue delay (see Matter ofEileen R. [Carmine S.], 79 AD3d at 1483; Matter of James Carton K., 245AD2d 374, 377 [1997], lv denied 91 NY2d 809 [1998]). Here, Family Courtaddressed respondent's due process right to be present at the October 2013 hearing byadvising his counsel that telephonic participation would be permitted, and we find noerror in the court's requirement that respondent or his counsel arrange for respondent'sparticipation, rather than doing so on his behalf (compare Matter of Jasper QQ., 64 AD3d 1017, 1019[2009], lv denied 13 NY3d 706 [2009]).
Nevertheless, we are unpersuaded that respondent was given an "opportunity toparticipate in a meaningful way" (Matter of Eileen R. [Carmine S.], 79 AD3d at1486), as the record includes no indication that he was notified that the October 2013hearing had been scheduled. It is clear from the record that respondent was generallyaware of the proceedings; utterly lacking, however, is any proof that he was notified ofthe October hearing date, either by Family Court or his own counsel. Upon review, itdoes not appear that, at the time of the scheduled hearing, respondent's counsel had eithercommunicated directly with him or advised him of the hearing date.[FN*]
Generally, a party who seeks to vacate a default judgment must demonstrate areasonable excuse for his or her failure to appear and a meritorious defense (see Matter of Prince CC., 66AD3d 1167, 1167-1168 [2009]; Matter of Shaune TT., 251 AD2d 758, 758[1998]). No such showing is required, however, where a party's fundamental due processrights have been denied (seeMatter of Hohenforst v DeMagistris, 44 AD3d 1114, 1116 [2007]). As notice isa fundamental component of due process, the orders denying respondent's application tovacate the default judgment must be reversed and the matter remitted for a newfact-finding hearing (see Matter of Hohenforst v DeMagistris, 44 AD3d at1116-1117; Matter of Cleveland W., 256 AD2d 1151, 1152 [1998]).
Egan Jr., Lynch and Clark, JJ., concur. Ordered that the order and amended order arereversed, on the law, without costs, motion granted, default judgment vacated and matterremitted to the Family Court of Schoharie County for further proceedings notinconsistent with this Court's decision.
Footnote *:Respondent argued uponappeal that he did not receive meaningful representation, but that issue need not bereached in light of our determination.