                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 20, 2016                   521807
________________________________

In the Matter of CHLOE N.,
   Alleged to be an Abandoned
   Child.

BROOME COUNTY DEPARTMENT OF
   SOCIAL SERVICES,                         MEMORANDUM AND ORDER
                    Respondent;

JOSHUA N.,
                    Appellant,
                    et al.,
                    Respondent.
________________________________


Calendar Date:   September 13, 2016

Before:   McCarthy, J.P., Garry, Devine, Clark and Mulvey, JJ.

                             __________


     Michelle I. Rosien, Philmont, for appellant.

      Thomas P. Coulson, Broome County Department of Social
Services, Binghamton, for respondent.

     Marcia Heller, Rock Hill, attorney for the child.

                             __________


Mulvey, J.

      Appeal from an order of the Family Court of Broome County
(Connerton, J.), entered August 24, 2015, which granted
petitioner's application, in a proceeding pursuant to Social
Services Law § 384-b, to adjudicate the subject child to be
abandoned, and terminated the parental rights of respondent
Joshua N.
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      The subject child (born in 2010) was removed from the care
of her parents, respondent Joshua N. (hereinafter respondent) and
respondent Kaitlin R., and placed in petitioner's custody in
January 2011, less than four months after the child was born.
Petitioner commenced this proceeding in December 2014 to
terminate respondents' parental rights on the basis of
abandonment.1 The first appearance on the petition was held in
April 2015, at which time it was agreed that the parties would
engage in permanency mediation to negotiate the terms of a
possible conditional surrender of the child. A trial date was
set for July 24, 2015. The mediation took place on May 29, 2015,
and a report was sent to Family Court indicating that an
agreement had been reached.2 Respondent was represented by
counsel at the first appearance and at the mediation. Because he
is a resident of North Carolina, he was permitted to appear by
telephone on both occasions. While the record does not reveal
how or why the trial date of July 24, 2015 was changed, an order
issued on June 26, 2015, which was entered and served on
respondent's counsel on July 13, 2015, merely stated that the
"next court date is August 4, 2015" and it did not indicate that
the trial would be held on that date.

      Indeed, at the time of the initial appearance, the mother
had not yet been served. Nevertheless, counsel for petitioner,
respondent and the attorney for the child appeared on August 4,
2015. At the commencement of the proceeding, respondent's
counsel was informed by Family Court that the case would be tried


    1
        Although both parents are named in the petition, the
mother is not named in the order appealed from nor is she a party
to this appeal.
    2
         Petitioner and respondent agreed to a conditional
surrender on May 29, 2015 which, if approved, would afford
respondent two visits per year with the child as well as 12 phone
calls per year and an annual photograph of the child. The record
does not indicate whether Family Court ever considered the
agreement reached at the mediation. Consequently, it would be
reasonable for respondent and his counsel to surmise that a trial
or final hearing was not yet imminent.
                               -3-                521807

at that time and he expressed his belief that the proceeding had
been scheduled as a pretrial conference.3 He moved to be
relieved as counsel, stating that he had not communicated with
respondent about the trial. Family Court denied his application.
Prior to hearing testimony, Family Court stated its intention to
reserve decision for 30 days and proceeded with the hearing in
respondent's absence. Testimony was presented by petitioner.
The record shows that there was no attempt to reach respondent on
the phone at any time during the hearing. Prior to the close of
proof, respondent's counsel requested an adjournment to permit
respondent to appear and present a case. Family Court denied the
request and stated that it would reserve decision until September
8, 2015, and that, if counsel could produce respondent and "seek
to offer some testimony[, counsel] can certainly ask [the court]
to re-open it and [the court will] jam it in on the calendar."
However, by an order dated August 13, 2015 and entered August 24,
2015, Family Court adjudicated the child to be abandoned by
respondent and terminated his parental rights. The record shows
that the order was served on respondent by mail and on his
counsel by email. Respondent appealed this order. By separate
order dated September 9, 2015, Family Court stayed its August 13,
2015 order until September 25, 2015.4 There is no indication in
the record that copies of the subsequent stay order were sent to
either respondent or to his counsel.

      Respondent contends that Family Court's determination that
he abandoned the child lacks a sound and substantial basis in the
record, as he communicated with the child and the foster family
during the six-month period preceding the petition, evincing his
desire to maintain a relationship with the child. Respondent
additionally avers that, had he been able to attend the hearing,
he would have presented evidence that demonstrated his additional
efforts and inability to visit the child. Finally, respondent


     3
        As of the court hearing on August 4, 2015, the mother
still had not yet been served.
     4
        The September 9, 2015 stay order erroneously refers to
September 7, 2015 as the date that Family Court stated it would
render a decision on the petition.
                              -4-                521807

contends that he did not receive the effective assistance of
counsel, insofar as his attorney, among other things, was not
aware that his case was scheduled for trial, failed to
communicate with him prior to such trial or request that
respondent appear by telephone, nor did counsel move to reopen
the proceedings to allow respondent to present testimony. As
such, he was denied his due process rights.

      We reverse. A parent has a due process right to be present
during proceedings to terminate parental rights, but that right
"is not absolute and must be balanced with the child's right to a
prompt and permanent adjudication" (Matter of Eileen R. [Carmine
S.], 79 AD3d 1482, 1483 [2010]). "Absent unusual justifiable
circumstances, a parent's rights should not be terminated without
his or her presence at the hearing" (Matter of Brandon Robert
LaC., 26 AD3d 211, 212 [2006] [citation omitted]). Under the
circumstances here, a brief adjournment to allow participation by
respondent would not have significantly impinged upon the child's
right to a prompt hearing (id.), especially since respondent may
have been the only witness regarding his defense that he had
attempted to contact the child (see Matter of Eileen R. [Carmine
S.], 79 AD3d at 1485). Because the record does not provide any
indication that either respondent or his counsel was aware that
the August 4, 2015 proceeding was scheduled as a final hearing or
trial on the petition, and because the record likewise provides
no indication that either was aware of the stay expiring on
September 25, 2015, we find that respondent was denied "some
opportunity to participate in a meaningful way" (Matter of Eileen
R. [Carmine S.], 79 AD3d at 1486; see Matter of Sonara HH.
[Robert HH.], 128 AD3d 1122, 1123-1124 [2015], lvs dismissed 25
NY3d 1220, 1221 [2015]). Thus, respondent is entitled to a new
hearing, with new counsel assigned to represent him.
Respondent's remaining contentions are, therefore, rendered
academic.

     McCarthy, J.P., Garry, Devine and Clark, JJ., concur.
                              -5-                  521807

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
