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ALTHOUGH MOTHER DID NOT APPEAR AT THE SCHEDULED CONFERENCE AND DID NOT HAVE A MERITORIOUS DEFENSE IN THIS NEGLECT PROCEEDING, SHE WAS NOT AWARE FINDINGS OF FACT WOULD BE MADE IN HER ABSENCE; DEFAULT ORDER VACATED ON DUE PROCESS GROUNDS (THIRD DEPT).

The Third Department, reversing Family Court, determined mother was deprived of her right to due process when findings of fact were made in her absence in this neglect proceeding. Although mother did not appear at a scheduled conference, mother was not aware findings of fact would be made:

A parent has a right “to be present at every stage of” a Family Ct Act article 10 proceeding as a matter of due process, but that right “is not absolute” … . Family Ct Act § 1042 provides that “a court may proceed with a hearing . . . in a parent’s absence, so long as the subject child is represented by counsel, and the absent parent may thereafter move to vacate the resulting order and schedule a rehearing” … . Vacatur of that order would ordinarily be warranted if, upon motion, the parent demonstrated “a meritorious defense to the petition, unless . . . [he or she] willfully refused to appear at the hearing” … . If the parent demonstrates that the default itself resulted from a deprivation of his or her “fundamental due process rights,” however, the default is a nullity and no showing of a meritorious defense is required … . …

… [A]lthough respondent was arguably on notice of the April 2018 conference, she did not receive notice that a potential fact-finding hearing might be conducted at it so as to satisfy due process … . Indeed, despite the references in the order of fact-finding to an inquest, there is no dispute that Family Court departed from “the proper course” of conducting a hearing in respondent’s absence by accepting the allegations in the petition as proven by virtue of respondent’s default … . It would offend due process to hold that respondent “default[ed] in attending a hearing that she did not know was going to happen and did not, in fact, happen” … . Thus, notwithstanding the failure of respondent to articulate a meritorious defense, Family Court abused its discretion in denying respondent’s motion. Matter of Arra L. (Christine L.), 2020 NY Slip Op 02829, Third Dept 5-14-20

 

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