In re Dashawn N.
Matter
of Dashawn N. (Youvonne N.)
2012
NY Slip Op 08743 [101 AD3d 1013]
December
19, 2012
Appellate
Division, Second Department
Published
by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As
corrected through Wednesday, February 6, 2013
In
the Matter of Dashawn N., an Infant. Westchester County Department of Social
Services, Respondent; Youvonne N., Appellant. (Proceeding No. 1.) In the Matter
of Judae N., an Infant. Westchester County Department of Social Services,
Respondent; Youvonne N., Appellant. (Proceeding No. 2.) In the Matter of
Nicholas N., an Infant. Westchester County Department of Social Services,
Respondent; Youvonne N. , Appellant. (Proceeding No. 3.) In the Matter of Kelsey
N.-C., Also Known as Kelcie N.-C., an Infant. Westchester County Department of
Social Services, Respondent; Youvonne N., Appellant. (Proceeding No. 4.)
—[*1]
George E. Reed, Jr., White Plains, N.Y., for appellant.
Robert
Meehan, County Attorney, White Plains, N.Y. (James Castro-Blanco and Thomas G.
Gardiner of counsel), for respondent.
Lisa
S. Goldman, White Plains, N.Y., attorney for the children.
In
related proceedings pursuant to Family Court Act article 10, the mother appeals
(1), as limited by her brief, from so much of an order of the Family Court,
Westchester County (Recine, Ct. Atty. Ref.), dated May 16, 2012, as denied her
motion to vacate the determinations made at a permanency hearing held on May 4,
2012, (2), as limited by her brief, from stated portions of an order of the
same court (Recine, Ct. Atty. Ref.) dated May 23, 2012, which, inter alia,
after a permanency hearing held on May 4, 2012, changed the permanency goal for
the subject child Kelsey N.-C. from reunification with her to placement for
adoption, and (3) from an order of the same court (Schauer, J.) dated June 29,
2012, which denied the mother's motion to vacate certain determinations
[*2]made by the Court Attorney Referee on the ground of lack of jurisdiction.
Ordered
that the orders dated May 16, 2012, and May 23, 2012, are reversed insofar as
appealed from, on the law, without costs or disbursements, the mother's motion
to vacate the determinations made at a permanency hearing held on May 4, 2012,
is granted, the determinations made at a permanency hearing held on May 4,
2012, are vacated, and the matter is remitted to the Family Court, Westchester
County, for a new hearing before a different Court Attorney Referee in
accordance herewith and a new determination thereafter; and it is further,
Ordered
that the order dated June 29, 2012, is affirmed, without costs or
disbursements.
A
continuation of a permanency hearing was scheduled before a Court Attorney
Referee (hereinafter the Referee) in the Family Court, Westchester County, at
9:30 a.m. on May 4, 2012. At 9:45 a.m. on May 4, 2012, the Referee proceeded
with the hearing, despite the absence of the mother and the mother's attorney.
The Referee made no inquiry into whether the mother or her attorney were en
route to the hearing, or were actually somewhere in the Family Court. At the
conclusion of the 17-minute hearing, the Referee, inter alia, made certain
determinations and approved the petitioner's request to modify the permanency
goal for the subject child Kelsey N.-C. (hereinafter the subject child) from
reunification with the mother to placement for adoption.
That
same day, the mother's attorney moved by order to show cause to vacate the
determinations made at the May 4, 2012, permanency hearing. The mother's attorney
asserted that he arrived at the Family Court for the hearing on May 4, 2012, at
approximately 9:43 a.m., and was waiting for the case to be called. The
mother's attorney maintained that he saw an Assistant County Attorney, who
represented the petitioner in the matter, in the waiting area and that the
Assistant County Attorney saw him, but that he moved to a different waiting
area and began reviewing his file. At 10:15 a.m., the mother's attorney saw the
attorney for the children, who informed him that the proceeding was
"done." According to the mother's attorney, a court officer told him
that the case and his name were called at 9:50 a.m., but the mother's attorney
did not hear his name called. In an order dated May 16, 2012, the Family Court,
inter alia, denied the motion to vacate the determinations and, in an order
dated May 23, 2012, the Family Court, among other things, changed the
permanency goal for the subject child from reunification with the mother to
placement for adoption.
Under
the particular circumstances of this case, the Family Court improperly
conducted the permanency hearing on May 4, 2012, in the absence of the mother's
attorney (see Matter of Williams v Bentley, 26 AD3d 441 [2006]). The Family
Court's actions in this regard effectively deprived the mother of her
fundamental right to counsel (see US Const Amend VI; NY Const, art I, § 6;
Family Ct Act § 262 [a] [i]; Matter of Stephen Daniel A. [Sandra M.], 87 AD3d
735, 736 [2011]), which also constituted a denial of due process and requires
reversal, without regard to the merits of the mother's position (see Matter of
Williams v Bentley, 26 AD3d at 442; Matter of Knight v Griffith, 13 AD3d 449
[2004]).
Accordingly,
the orders dated May 16, 2012, and May 23, 2012, must be reversed insofar as
appealed from, the mother's motion to vacate the determinations made at the May
4, 2012, permanency hearing must be granted, and the matter must be remitted to
the Family Court, Westchester County, for a new hearing before a different
Court Attorney Referee as to the permanency goal for the subject child and a
new determination thereafter.
The
Family Court properly denied the mother's motion to vacate certain
determinations made by the Referee on the ground of lack of jurisdiction.
Contrary to the mother's contention, the Referee had jurisdiction to render the
subject determinations based on an order of reference and a stipulation of the
parties dated September 27, 2011.
The
mother's remaining contentions are without merit. Angiolillo, J.P., Dickerson,
Hall and Austin, JJ., concur.