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IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, ALTHOUGH FAMILY COURT THREATENED TO FIND RESPONDENT IN DEFAULT WHEN HE DID NOT PROVIDE PROOF HE FAILED TO APPEAR BECAUSE HE WAS HOSPITALIZED, FAMILY COURT DID NOT ULTIMATELY GIVE RESPONDENT A “DEFAULT WARNING;” RESPONDENT AND HIS COUNSEL WERE PRESENT AT THE FACT-FINDING BUT WERE PRECLUDED BY THE COURT FROM PARTICIPATING; RESPONDENT HAS A RIGHT TO BE HEARD ON THE ABANDONMENT ISSUE; REVERSED AND REMITTED (THIRD DEPT).

The Third Department, reversing Family Court, determined respondent father in this termination of parental rights proceeding was not in default and that he was entitled to present a defense. To explain his failure to appear, respondent said he was hospitalized but he did not provide any proof of hospitalization when the court requested it. The court then found respondent to be in default and precluded respondent and his counsel from participating in the termination hearing:

Petitioner and the attorney for the child argue that the appeal must be dismissed because the challenged order was entered upon respondent’s default. We disagree. In its written decision, Family Court stated that it had advised respondent’s counsel at the December 18, 2019 appearance that, if the requested medical documentation was not timely provided, it “would find [respondent] in default” and “the trial would be an [i]nquest.” Our review of the record, however, confirms that no such warning was given. Instead, the court cautioned that if respondent failed to comply, it would “proceed with the proceeding with regard to the termination of his parental rights.” This is not a default warning but notice that the hearing would go forward on January 15, 2020. However frustrating respondent’s noncompliance with the court’s reasonable directive to provide documentation of his hospitalization may have been, the key point here is that respondent and his counsel were in attendance at the fact-finding hearing. We fully appreciate that trial courts are vested with broad authority to maintain the integrity of their calendars. Under the circumstances presented, however, we conclude that Family Court abused its discretion in holding respondent to be in default and precluding any participation at the hearing … . Matter of Makayla NN. (Charles NN.), 2022 NY Slip Op 02165, Third Dept 3-31-22

​Practice Point: Here Family Court never gave a “default warning” to respondent father when he failed to provide proof he did not appear because he was hospitalized. Father, who was present at the fact-finding, should not have been found to be in default and precluded from participating in the termination of parental rights proceeding.

 

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