        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1036
CAF 12-01382
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ.


IN THE MATTER OF SKYLA H. AND SHAYLEE H.
-----------------------------------------------
JEFFERSON COUNTY DEPARTMENT OF SOCIAL SERVICES,    MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

JAMES H., II, RESPONDENT-APPELLANT.


DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT.

MICHAEL D. WERNER, WATERTOWN, FOR PETITIONER-RESPONDENT.

KIMBERLY A. WOOD, ATTORNEY FOR THE CHILDREN, WATERTOWN.


     Appeal from an order of the Family Court, Jefferson County
(Richard V. Hunt, J.), entered June 27, 2012 in a proceeding pursuant
to Family Court Act article 10. The order determined the subject
children to be abused and derivatively abused.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: On appeal from an order adjudicating the subject
children abused and derivatively abused, respondent father contends
that Family Court violated his right to due process by conducting
proceedings in his absence. That contention is not preserved for our
review (see Matter of Atreyu G. [Jana M.], 91 AD3d 1342, 1342, lv
denied 19 NY3d 801) and, in any event, we conclude that it is without
merit. “ ‘While due process of law applies in Family [Court] Act
article 10 proceedings and includes the right of a parent to be
present at every stage of the proceedings, that right is not
absolute’ ” (Matter of Assatta N.P. [Nelson L.], 92 AD3d 945, 945; see
Atreyu G., 91 AD3d at 1342). Here, at the time of the article 10
proceeding, the father was incarcerated on criminal charges stemming
from his conviction of sexually abusing one of his daughters, i.e.,
the same conduct that formed the basis for the article 10 proceeding.
The father was not present at the court appearance when the court
decided petitioner’s motion for summary judgment, but we conclude that
the father was not prejudiced by his absence from that appearance (see
Matter of Eric L., 51 AD3d 1400, 1401-1402, lv denied 10 NY3d 716; see
also Assatta N.P., 92 AD3d at 945). “It is well settled that evidence
that a parent has been convicted of having raped or sexually abused a
child is sufficient to support a finding of abuse of that child within
the meaning of the Family Court Act” (Matter of Miranda F. [Kevin D.],
91 AD3d 1303, 1305; see Matter of Doe, 47 AD3d 283, 285, lv denied 10
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                                                         CAF 12-01382

NY3d 709), and under the circumstances of this case there was nothing
the father could have stated at the appearance that would warrant the
denial of petitioner’s motion for summary judgment. The father was
also not present at the scheduled dispositional hearing, but the
father’s attorney indicated that his office obtained permission from
the father to agree to the proposed disposition (see generally Matter
of Patricia C., 63 AD3d 1710, 1711).

     We reject the father’s further contention that his attorney was
ineffective for failing to protect his due process right to appear at
the proceedings. The father failed to “demonstrat[e] both that he . .
. was denied meaningful representation and that the deficient
representation resulted in actual prejudice” (Matter of Michael C., 82
AD3d 1651, 1652, lv denied 17 NY3d 704; see Assatta N.P., 92 AD3d at
945-946).




Entered:   November 8, 2013                    Frances E. Cafarell
                                               Clerk of the Court
