Calendar Date: December 17, 2019
Matthew C. Hug, Albany, for appellant.
Michelle E. Stone, Vestal, for Starasia E., respondent.
A. Lyons, Binghamton, attorney for the child.
Before: Lynch, J.P., Clark, Mulvey, Devine and Reynolds
from an order of the Family Court of Broome County (Pines,
J.), entered March 23, 2018, which granted petitioner's
application, in a proceeding pursuant to Family Ct Act
article 6, for custody of the subject child.
Vincent F. (hereinafter the father) and respondent Leonora E.
(hereinafter the mother) are the parents of a child (born in
2014). Petitioner (hereinafter the cousin) is the
mother's cousin. In October 2017, the mother left the
child with the cousin and never returned. The cousin then
commenced this proceeding for sole custody of the child. By
summons dated November 15, 2017, Family Court notified both
the mother and the father who was incarcerated in
Pennsylvania that they were to appear on January 22, 2018 to
answer the petition. On January 19, 2018, an officer of the
Pennsylvania Department of Corrections wrote to the court to
advise that the father wished to participate at the January
22, 2018 appearance by telephone. The notice to the mother
was returned to the court as undeliverable.
January 22, 2018, the cousin appeared on the petition. At the
start of the proceeding, Family Court noted the father's
absence due to his out-of-state custodial status and that it
had "received contact that he may be available by
telephone." The court denied the father's request
because, "inasmuch as [the father] is... an inmate in...
Pennsylvania [, the court] has no jurisdiction over him, has
no control, [and] cannot compel his attendance personally
before the court." After assigning an attorney for the
child and an attorney for the cousin, the court awarded the
cousin temporary custody of the child and ordered an
investigation pursuant to Family Ct Act § 1034.
cousin, her attorney and the attorney for the child were
present at the next appearance in March 2019. Family Court
reviewed the 1034 report, which indicated that the mother
left the child with the cousin in October 2017 and had not
returned or had any contact with the cousin or the child
since. After again stating that it did not have jurisdiction
over the father, the court awarded sole legal custody to the
cousin. The court held, in its subsequent order, that the
mother's and the father's rights are "reserved
to file a modification [petition]... without the need to show
a change [in] circumstances." The father appeals.
right to be heard is fundamental to our system of
justice" (Matter of Jung [State Commn. on Jud.
Conduct], 11 N.Y.3d 365, 372  [citations
omitted]). Further, "[p]arents have an equally
fundamental interest in the liberty, care and control of
their children" (id. at 373; see Matter of
Krystle L.B. v Crystal L.W., 166 A.D.3d 876, 876
). "[E]ven an incarcerated parent has a right to
be heard on matters concerning [his or her] child, where
there is neither a willful refusal to appear nor a waiver of
appearance" (Matter of Tristram K., 25 A.D.3d
222, 226-227 ; see Matter of Locklear v
Andrews, 118 A.D.3d 1001, 1003 ). Here, the father
had notice of the proceeding, did not challenge Family
Court's jurisdiction and the court could have permitted
him to testify telephonically (see e.g. Domestic
Relations Law § 75-j ; Matter of Westchester
County Dept. of Social Servs., 211 A.D.2d 235, 238
). Because the record demonstrates that the father was
not given an opportunity to participate in the proceedings,
we must reverse and remit for a new hearing (see Matter
of Krystle L.B. v Crystal L.W., 166 A.D.3d at 876;
Matter of Locklear v Andrews, 118 A.D.3d at 1003).
Mulvey, Devine and Reynolds Fitzgerald, JJ., concur.
that the order is reversed, on the law, without costs, and
matter remitted to the Family Court of Broome County for
further proceedings ...