SERVICES PETITIONER RESPONDENT CAROL RESPONDENT APPELLANT v. <<

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

SERVICES, PETITIONER–RESPONDENT;  CAROL C., RESPONDENT–APPELLANT.

CAF 10–00916

Decided: April 29, 2011

PRESENT:  SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ. D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF COUNSEL), FOR RESPONDENT–APPELLANT. STEPHEN J. RILEY, OLEAN, FOR PETITIONER–RESPONDENT.

MEMORANDUM AND ORDER

SCHAVON R. MORGAN, ATTORNEY FOR THE CHILD, MACHIAS, FOR THOR C.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Family Court, Cattaraugus County, for a new fact-finding hearing on the issue of respondent's alleged neglect of her son.

Memorandum:  Respondent mother appeals from an order that, inter alia, adjudged that she neglected her son.   We agree with the mother that Family Court violated her right to due process by refusing to permit her to testify during the fact-finding phase of the proceeding (see Matter of Patricia C., 63 AD3d 1710, 1711;  Matter of Barbara R., 66 A.D.2d 800).  “The right to be heard is fundamental to our system of justice ․ [and p]arents have an equally fundamental interest in the liberty, care and control of their children” (Matter of Jung [State Commn. on Jud. Conduct], 11 NY3d 365, 372–373).   The court's order was based on, inter alia, a prior order in which it found that the mother neglected her son's three siblings based in part on her failure to take appropriate action with respect to those children when she was informed that one of them had been sexually abused by their father, and we affirmed that prior order (Matter of Annastasia C., 78 AD3d 1579, lv denied _ NY3d _ [Mar. 31, 2011] ).   The mother's son, however, was not a subject of the proceeding resulting in that prior order, and the mother therefore should have been afforded an opportunity to be heard in response to the new evidence offered by petitioner in the instant proceeding (see Patricia C., 63 AD3d at 1711).

Patricia L. Morgan

Clerk of the Court