Daniel Y., Respondent-Appellant. v. << (1999)

Respondent failed to appear in court on the scheduled day for a fact-finding hearing on a neglect petition, and Family Court granted a default order finding that respondent's three children were neglected.   We reverse.   “Respondent['s] failure to appear in person at the scheduled fact-finding hearing does not automatically constitute a default [citations omitted].   This is especially true where, as here, respondent[ ] did appear by [his] assigned counsel who objected to petitioner's default motion and who, given the opportunity, could have proceeded to a hearing and defended [her] absent client [ ]” (Matter of Cassandra M., 260 A.D.2d 961, 689 N.Y.S.2d 279;  see, Matter of Baer, 125 Misc.2d 563, 569, 480 N.Y.S.2d 178;  Besharov, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 29A, Family Ct. Act § 1042, at 119).   The court should have conducted a fact-finding hearing and made a determination based on the facts and evidence presented to the court (see, Matter of Cassandra M., supra ).   In the absence of a fact-finding hearing, there was no factual support for the finding that the children were neglected.   We reject petitioner's contention that the appeal should be dismissed on the ground that no appeal lies from an order entered upon default.   Because counsel for respondent appeared on the day of the scheduled fact-finding hearing, the order was not one entered upon respondent's default (see, Matter of Kwasi S., 221 A.D.2d 1029, 634 N.Y.S.2d 579).   We therefore reverse the order and remit the matter to Erie County Family Court to conduct a fact-finding hearing on the petition.

Order unanimously reversed on the law without costs and matter remitted to Erie County Family Court for further proceedings.

MEMORANDUM: