In re Deiby C.

68 A.D.3d 606, 891 N.Y.2d 368

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 2009
• Status: Published

Opinion

Appellant is entitled to vacatur of his admission because “the court failed to comply with Family Court Act § 341.2 (3) which mandates that a court not proceed with any hearing in the absence of the juvenile’s parent unless a ‘reasonable and substantial’ effort has been made to notify the parent. No such effort was made here, thereby requiring reversal of the disposition” (Matter of Timothy B., 114 AD2d 336, 337 [1985]). The record contains no satisfactory explanation for the mother’s absence from the allocution proceeding, given that she was in court earlier the same day and was also present at the dispositional hearing. Since this requirement is nonwaivable, preservation is not required (see Matter of Tyler D., 64 AD3d 1243, 1244 [2009]).

Since appellant completed his period of placement, we dismiss the petition rather than remanding the matter for further proceedings (see e.g. Matter of Joshua HH., 299 AD2d 760 [2002]). We have considered and rejected the presentment agency’s remaining arguments. Concur — Gonzalez P.J., Tom, Sweeny, Freedman and Abdus-Salaam, JJ.