Erie County Department of Social Services, Respondent. v. <<

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of JAMES R., Jr., Tony R., Cassy R. and Destiny R. Constance R., Appellant; Erie County Department of Social Services, Respondent.

Decided: April 25, 1997

Before PINE, J.P., and LAWTON, DOERR, BOEHM and FALLON, JJ. William H. Bond, Buffalo, for Appellant. Robert E. Pierce (Richard Usen, of counsel), Buffalo, for Respondent. Charles Halvosen, Buffalo, for Law Guardian.

Family Court abused its discretion in denying the motion of petitioner to vacate the orders of disposition entered against her upon her default.   Those orders terminated the parental rights of petitioner with respect to her four children on the ground of permanent neglect.

 Ordinarily, a party seeking to vacate a default must show that there is a reasonable excuse for the default and a meritorious defense (see, Matter of Naajila J. [Kevin J.], 235 A.D.2d 540, 653 N.Y.S.2d 857;  Matter of Little Flower Children's Servs. [Sean Courtney G.] v. Vernon J., 213 A.D.2d 548, 624 N.Y.S.2d 908;  Matter of Shirley C. [Roger C.], 145 A.D.2d 631, 536 N.Y.S.2d 156;  Matter of Jones, 128 A.D.2d 403, 512 N.Y.S.2d 689).   That showing was unnecessary here, however, because the record establishes that petitioner was denied effective assistance of assigned counsel.

 A respondent in a permanent neglect proceeding has the right to effective assistance of counsel (see, Family Ct Act §§ 261, 262[a] [iv];  see also, Matter of Karl L. [Gayle L.], 224 A.D.2d 841, 637 N.Y.S.2d 814;  Matter of De Vivo v. Burrell, 101 A.D.2d 607, 474 N.Y.S.2d 860), and the denial of such right may be raised at any time (see, People v. Jackson, 218 A.D.2d 556, 558, 630 N.Y.S.2d 715, lv denied 87 N.Y.2d 847, 638 N.Y.S.2d 606, 661 N.E.2d 1387).   Further, because the potential consequences are so drastic, the Family Court Act “affords protections equivalent to the constitutional standard of effective assistance of counsel afforded defendants in criminal proceedings” (Matter of Erin G. [Patrick G.], 139 A.D.2d 737, 739, 527 N.Y.S.2d 488;  see, Matter of Ashley M. [John M.], 235 A.D.2d 858, 653 N.Y.S.2d 163 ).   Thus, petitioner must demonstrate that she was deprived of meaningful representation and that she suffered actual prejudice as the result of the claimed deficiencies (see, Matter of Matthew C. [Donna C.], 227 A.D.2d 679, 641 N.Y.S.2d 753;  see generally, People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

 Petitioner appeared at every scheduled court date prior to the scheduled trial date.   Counsel sent another attorney in her place on one court date but failed to appear on another court date and was not present on the day scheduled for trial.   At no time did counsel even meet with petitioner.   On the scheduled trial date, the court proceeded in the absence of both petitioner and counsel, granted the petition and terminated petitioner's parental rights.   It appears from the record that the default of petitioner was caused by her misunderstanding regarding the necessity of appearing on the date set for trial, and the record supports the conclusion that her assigned counsel did nothing to clear up that misunderstanding and, indeed, may have contributed to it.   Thereafter, counsel did not fulfill her promise to bring a motion to vacate the default.   Thus, it cannot be said that petitioner was not prejudiced by the lack of effective representation.

Order unanimously reversed on the law without costs, motion granted and orders of disposition vacated.

MEMORANDUM: