Matter of Joslyn U. (Heather L.)

Matter of Joslyn U. (Heather L.) 2014 NY Slip Op 06701 Decided on October 3, 2014 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 3, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., FAHEY, LINDLEY, WHALEN, AND DEJOSEPH, JJ.
894 CAF 12-02212

[*1]IN THE MATTER OF JOSLYN U., DANZARIO E., ANASIAH L. AND ARIEL L. OSWEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT;

and

HEATHER L., RESPONDENT-APPELLANT.

Appeal from an order of the Family Court, Oswego County (Kimberly M. Seager, J.), entered October 15, 2012 in a proceeding pursuant to Family Court Act article 10. The order determined that respondent had neglected the subject children.

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF COUNSEL), FOR RESPONDENT-APPELLANT.

LESLEY C. GERMANOW, MEXICO, FOR PETITIONER-RESPONDENT.

JOHN W. SPRING, JR., ATTORNEY FOR THE CHILD, PHOENIX.

STEPHANIE N. DAVIS, ATTORNEY FOR THE CHILD, OSWEGO.

PAMELA A. MUNSON, ATTORNEY FOR THE CHILDREN, FULTON.

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, Oswego County, for further proceedings in accordance with the following Memorandum: Respondent mother appeals from an order determining that she neglected the subject children. The record establishes that the mother failed to appear at the fact-finding hearing and that her attorney withdrew and did not participate therein. We agree with the mother that Family Court erred in allowing her attorney to withdraw and in proceeding with the hearing in the mother's absence, inasmuch as the attorney failed to provide reasonable notice to the mother that she planned to withdraw (see Matter of Meko M. , 272 AD2d 953, 954). The mother's attorney did not make a written motion to withdraw as counsel and merely sent the mother a letter six days before the hearing stating she may withdraw if the mother did not appear for the hearing and thus failed to give the mother proper notice and time to respond. We note that, although the record fully supports a finding that the mother neglected the subject children, " such a finding may not stand [where, as here, the mother] was denied due process' " (id. ). We therefore reverse the order and remit the matter to Family Court for the assignment of new counsel and a new hearing on the petition.

Entered: October 3, 2014

Frances E. Cafarell

Clerk of the Court