Daneries V.-A., Respondent-Appellant. v. << (2006)

 Family Court properly adjudicated respondent's child to be permanently neglected and terminated respondent's parental rights.   Contrary to the contention of respondent, she was not denied due process when the court conducted fact-finding and dispositional hearings in her absence.  “[A] parent's right to be present for fact-finding and dispositional hearings in termination cases is not absolute” (Matter of James Carton K., 245 A.D.2d 374, 377, 665 N.Y.S.2d 426, lv. denied 91 N.Y.2d 809, 670 N.Y.S.2d 403, 693 N.E.2d 750;  see Matter of Lillian D.L., 29 A.D.3d 583, 584, 813 N.Y.S.2d 784;  Matter of Raymond Dean L., 109 A.D.2d 87, 88, 490 N.Y.S.2d 75) and, “when faced with the unavoidable absence of a parent, a court must balance the respective rights and interests of both the parent and the child in determining whether to proceed” (James Carton K., 245 A.D.2d at 377, 665 N.Y.S.2d 426;  see Lillian D.L., 29 A.D.3d at 584, 813 N.Y.S.2d 784).   Here, respondent and the father of her two children had kidnapped the children from foster care in Erie County and had fled to Puerto Rico. While in Puerto Rico, the father murdered one of the children and, at the time of the hearings at issue, respondent was serving a term of incarceration in Puerto Rico imposed upon her plea of guilty arising from her failure to protect the murdered child.   We thus conclude under the circumstances of this case that the court providently exercised its discretion in conducting the hearings in respondent's absence (see Raymond Dean L., 109 A.D.2d at 88-89, 490 N.Y.S.2d 75;  see generally Lillian D.L., 29 A.D.3d at 584, 813 N.Y.S.2d 784).

We further conclude that respondent received effective assistance of counsel (see Lillian D.L., 29 A.D.3d at 584, 813 N.Y.S.2d 784;  see also Matter of Brenden O., 20 A.D.3d 722, 723, 798 N.Y.S.2d 250;  Matter of Robert David L., 7 A.D.3d 529, 530, 776 N.Y.S.2d 316, lv. denied 3 N.Y.3d 606, 785 N.Y.S.2d 23, 818 N.E.2d 665).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: