IN RE: ARRA L. and Others (2020)

MEMORANDUM AND ORDER

Respondent is the mother of four children (born in 2001, 2003, 2005 and 2007), and petitioner commenced this proceeding alleging that she had neglected them.  Respondent attended several court conferences without the benefit of counsel until, in April 2018, she was absent without explanation for a conference.  Upon petitioner's application, Family Court declared respondent in default and issued an order adjudicating her to have neglected the children.  Respondent thereafter moved to vacate the default order of fact-finding.  Family Court denied the motion and respondent appeals.¹

We reverse.  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” (Matter of Elizabeth T., 3 A.D.3d 751, 753, 770 N.Y.S.2d 804 [2004];  see Matter of Jack NN. [Sarah OO.], 173 A.D.3d 1499, 1501, 105 N.Y.S.3d 146 [2019], lvs denied 34 N.Y.3d 904, 112 N.Y.S.3d 686, 698, 136 N.E.3d 419, 434 [2019];  Matter of Lindsey BB., 70 A.D.3d 1205, 1207, 896 N.Y.S.2d 186 [2010] ).  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” (Matter of Jack NN. [Sarah OO.], 173 A.D.3d at 1501, 105 N.Y.S.3d 146;  see Matter of Jack P., 80 A.D.3d 812, 813, 914 N.Y.S.2d 406 [2011], lv denied 16 N.Y.3d 710, 2011 WL 1584855 [2011] ).  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” (Family Ct Act § 1042;  see Matter of Lila JJ. [Danelle KK.], 180 A.D.3d 1169, 1170, 120 N.Y.S.3d 465 [2020];  Matter of Keith A.H. [Andrew H.], 180 A.D.3d 902, 903–904, 116 N.Y.S.3d 613 [2020] ).  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 (Matter of Sonara HH. [Robert HH.], 128 A.D.3d 1122, 1124, 8 N.Y.S.3d 477 [2015], lvs dismissed 25 N.Y.3d 1220, 1221, 16 N.Y.S.3d 513, 514, 37 N.E.3d 1157 [2015];  see Matter of King v. King, 167 A.D.3d 1272, 1274, 91 N.Y.S.3d 283 [2018];  see also Notaro v. Performance Team, 161 A.D.3d 1093, 1095, 77 N.Y.S.3d 700 [2018] ).

In respondent's motion to vacate the default order of fact-finding, she explained her absence from the conference, but failed to set forth a meritorious defense.  That said, although 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 (see Matter of Sonara HH. [Robert HH.], 128 A.D.3d at 1124, 8 N.Y.S.3d 477;  cf.  Matter of Ritter v. Moll, 148 A.D.3d 1427, 1428, 50 N.Y.S.3d 183 [2017] ).  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 (Matter of Cassandra M., 260 A.D.2d 961, 963, 689 N.Y.S.2d 279 [1999];  accord Matter of Lila JJ. [Danelle KK.], 180 A.D.3d at 1171, 120 N.Y.S.3d 465).  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” (Matter of Lila JJ. [Danelle KK.], 180 A.D.3d at 1171, 120 N.Y.S.3d 465).  Thus, notwithstanding the failure of respondent to articulate a meritorious defense, Family Court abused its discretion in denying respondent's motion.

ORDERED that the order is reversed, on the law, without costs, motion granted and matter remitted to the Family Court of Tioga County for further proceedings not inconsistent with this Court's decision.

FOOTNOTES

1.   Intermediate orders like the one at issue here are appealable in Family Ct Act article 10 matters (see Family Ct Act § 1112[a];  Matter of Krystal F. [Liza R.], 68 A.D.3d 670, 670, 892 N.Y.S.2d 87 [2009] ).  Inasmuch as the parties' rights would still be directly affected by vacatur of the fact-finding order, we do not agree with petitioner and the attorney for the children that the eventual dispositional order, agreed to by the parties, had any impact upon that appealability (compare Matter of Ahriiyah VV. [Rebecca VV.], 160 A.D.3d 1140, 1141 n., 74 N.Y.S.3d 416 [2018], lv denied 31 N.Y.3d 911, 2018 WL 3118198 [2018], with Matter of Ameillia RR. [Megan SS.], 95 A.D.3d 1525, 1526, 944 N.Y.S.2d 679 [2012] ).

Devine, J.

Egan Jr., J.P., Clark, Pritzker and Colangelo, JJ., concur.