In re Luis R.

Appellate Division of the Supreme Court of New York

In re Luis R.

184 A.D.2d 1012

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 5, 1992

StatusPublished

Cited by2 cases

This text of 184 A.D.2d 1012 (In re Luis R.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Luis R., 184 A.D.2d 1012 (N.Y. Ct. App. 1992).

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Opinion

Order unanimously affirmed without costs. Memorandum: We reject respondent’s contention that she was deprived of the right to cross-examine witnesses. At the time that the fact-finding hearing was scheduled, Family Court warned respondent that, if she failed to appear, the hearing would be held in her absence and her parental rights could be terminated. Respondent assured the court that she understood the warning, but failed to appear at the fact-finding hearing or at the subsequent dispositional hearing. Respondent’s attorney appeared at the hearings, advised the court that she was ready to proceed but objected to holding the hearings in respondent’s absence. As each witness testified, respondent’s attorney declined to cross-examine on the ground that she could not conduct meaningful cross-examination without respondent’s participation. Thus, respondent was afforded the opportunity to cross-examine the witnesses but, by the actions of her counsel and as a result of her unexplained absence from the proceedings, failed to avail herself of that opportunity, thereby waiving her right to cross-examine (see, Matter of White, 2 NY2d 309, 314; Bradley v Mirick, 91 NY 293, 295-296).

Family Court properly declined to hold a hearing to determine whether respondent’s failure to appear was willful or inadvertent. In order to be relieved of her default, respondent was required to provide a reasonable excuse for her absence and proof of merit (see, Matter of Male H., 179 AD2d 384; Matter of Linday E., 177 AD2d 276; Matter of Jones, 128 AD2d 403). Neither showing was made by respondent, and Family Court was under no obligation to conduct an independent inquiry into the reasons for the mother’s absence.

The record supports Family Court’s conclusion that respondent had the physical and financial ability to maintain contact with and plan for the future of her children (see, Social Services Law § 384-b [7] [a]). (Appeal from Order of Monroe County Family Court, Miller, J. — Permanent Neglect.) Present —Callahan, J. P., Green, Pine, Lawton and Davis, JJ.

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Order unanimously affirmed without costs. Memorandum: We reject respondent’s contention that she was deprived of the right to cross-examine witnesses. At the time that the fact-finding hearing was scheduled, Family Court warned respondent that, if she failed to appear, the hearing would be held in her absence and her parental rights could be terminated. Respondent assured the court that she understood the warning, but failed to appear at the fact-finding hearing or at the subsequent dispositional hearing. Respondent’s attorney appeared at the hearings, advised the court that she was ready to proceed but objected to holding the hearings in respondent’s absence. As each witness testified, respondent’s attorney declined to cross-examine on the ground that she could not conduct meaningful cross-examination without respondent’s participation. Thus, respondent was afforded the opportunity to cross-examine the witnesses but, by the actions of her counsel and as a result of her unexplained absence from the proceedings, failed to avail herself of that opportunity, thereby waiving her right to cross-examine (see, Matter of White, 2 NY2d 309, 314; Bradley v Mirick, 91 NY 293, 295-296).

Family Court properly declined to hold a hearing to determine whether respondent’s failure to appear was willful or inadvertent. In order to be relieved of her default, respondent was required to provide a reasonable excuse for her absence and proof of merit (see, Matter of Male H., 179 AD2d 384; Matter of Linday E., 177 AD2d 276; Matter of Jones, 128 AD2d 403). Neither showing was made by respondent, and Family Court was under no obligation to conduct an independent inquiry into the reasons for the mother’s absence.

The record supports Family Court’s conclusion that respondent had the physical and financial ability to maintain contact with and plan for the future of her children (see, Social Services Law § 384-b [7] [a]). (Appeal from Order of Monroe County Family Court, Miller, J. — Permanent Neglect.) Present —Callahan, J. P., Green, Pine, Lawton and Davis, JJ.

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184 A.D.2d 1012, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-luis-r-nyappdiv-1992.

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