| Matter of Katie P.H. (Latoya M.) |
| 2020 NY Slip Op 02265 |
| Decided on April 9, 2020 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on April 9, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
CHERYL E. CHAMBERS
ANGELA G. IANNACCI
LINDA CHRISTOPHER, JJ.
2019-01943
(Docket No. NN-04157-17)
William D. Eddy, Jr., White Plains, NY, for appellant.
John M. Nonna, County Attorney, White Plains, NY (Linda M. Trentacoste and Allison Burke of counsel), for respondent.
Gloria Marchetti-Bruck, White Plains, NY, attorney for the child.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 10, the mother appeals from an order of fact-finding and disposition of the Family Court, Westchester County (Nilda Morales Horowitz, J.), dated January 14, 2019. The order, inter alia, after a fact-finding hearing, found that the mother neglected the subject child.
ORDERED that the order of fact-finding and disposition is reversed, on the facts and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Family Court, Westchester County, for further proceedings in accordance herewith.
The Westchester County Department of Social Services (hereinafter DSS) commenced this proceeding pursuant to Family Court Act article 10 alleging that the mother neglected the subject child by, inter alia, repeatedly hitting the child's maternal grandmother and using a Taser to further harm her in the child's presence.
The Family Court conducted a fact-finding hearing over the course of several days, during which the mother was present, and the maternal grandmother and a DSS caseworker testified. On the fifth day of the hearing, the mother was late in arriving to court because she allegedly was traveling by bus from Georgia to New York, and the bus was delayed. The mother's counsel notified the court of the mother's transportation issue, and of her intention to testify, and requested an adjournment. The court denied the adjournment request and directed that the hearing proceed as scheduled. The mother arrived shortly after summations, but the court did not reopen the hearing to afford the mother the opportunity to testify.
Following the hearing, the Family Court found that the mother neglected the child. By order of fact-finding and disposition dated January 14, 2019, the court, inter alia, determined that the mother neglected the child. The mother appeals.
A finding of neglect constitutes "a permanent and significant stigma" which might [*2]indirectly affect the mother's status in future proceedings (Matter of Justin P. [Damien P.], 148 AD3d 903, 904; Matter of Grayson J. [Sharon H.], 119 AD3d 575, 577). The Family Court has the authority to reopen a Family Court Act article 10 proceeding to allow a party to present additional testimony at a fact-finding hearing (see e.g. Matter of Dior Z.J. [Dior J.], 139 AD3d 1065; Matter of Dutchess County Dept. of Social Servs. v Shirley U., 266 AD2d 459, 459-460).
Under the circumstances of this case, the Family Court should have exercised its discretion to reopen the fact-finding hearing to afford the mother the opportunity to present her case.
The mother's remaining contentions are either without merit or need not be reached in light of our determination.
Accordingly, we remit the matter to the Family Court, Westchester County, for a continued fact-finding hearing for the mother to present her case and a new determination of DSS's petition thereafter.
MASTRO, J.P., CHAMBERS, IANNACCI and CHRISTOPHER, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court