In re Tesema H.

227 A.D.2d 122, 642 N.Y.S.2d 505, 1996 N.Y. App. Div. LEXIS 4783

Opinion

Order, Family Court, New York County (Leah Marks, J.), entered October 24, 1994, which denied respondent-appellant’s motion to vacate the fact-finding order made against her on default in this neglect proceeding, unanimously reversed, on the law, without costs, the fact-finding order and resulting disposition vacated, and the matter remitted to Family Court to reopen the fact-finding hearing.

As both the Commissioner of Social Services and the Law Guardian have acknowledged throughout, respondent-appellant demonstrated that her failure to appear at the fact-finding hearing was not willful, and, accordingly, the fact-finding order and the resulting disposition should have been vacated for additional fact-finding (Family Ct Act § 1042; see, Matter of Dutchess County Dept. of Social Servs. [Mark M.], 196 AD2d 196). Concur — Rosenberger, J. P., Wallach, Rubin, Kupferman and Mazzarelli, JJ.