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In re Trey C.

Supreme Court of New York, First Department

October 24, 2013

In re Trey C., and Another, Children Under the Age of Eighteen Years, etc., and Amber C., Respondent-Appellant, Administration For Children's Services, Petitioner-Respondent.

Andrew J. Baer, New York, for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Diana Lawless of counsel), for respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Patricia S. Colella of counsel), attorney for the child Trey C.

Sweeny, J.P., Renwick, Feinman, Clark, JJ.

Orders of fact-finding and disposition, Family Court, Bronx County (Karen I. Lupuloff, J.), entered on or about October 18, 2012, which, inter alia, upon respondent's default, determined that respondent, a person legally responsible for the subject children, abused the child Annyika B. and derivatively abused the child Trey C., and directed respondent to comply with the terms and conditions specified in an order of protection, unanimously reversed, on the law, without costs, and the matter remanded for a new fact-finding hearing.

The court erred in entering the orders on respondent's alleged default. Her failure to appear at the scheduled hearing dates did not constitute a default inasmuch as her counsel was present, stated that she wished to proceed, and affirmed that she had respondent's authorization to do so (see Matter of Bradley M.M. [Michael M.-Cindy M.], 98 A.D.3d 1257 [4th Dept 2012]; Matter of Shemeco D., 265 A.D.2d 860 [4th Dept 1999]; cf. Matter of Aaron C. [Grace C.], 105 A.D.3d 548, 548-549 [1st Dept 2013]; Matter of Jaquan Tieran B. [Latoya B.], 105 A.D.3d 498, 499 [1st Dept 2013]).


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