In re Mursol B.

Nov 16, 1999
Versions:266 A.D.2d 76
698 N.Y.S.2d 467
1999 N.Y. App. Div. LEXIS 11619

—Appeal from order of disposition, Family Court, Bronx County (Bruce Kaplan, J.), entered on or about July 14, 1997, which committed guardianship and custody to respondent father Irving B., following a fact-finding determination of neglect as to both parents and of abuse as to respondent father, and order, same court and Justice, entered on or about May 28, 1997, which denied appellant mother’s motion to vacate her default, unanimously dismissed, without costs.

The Family Court’s order denying appellant’s request to reopen the hearing was error in view of the overwhelming evidence which showed appellant did not wilfully default. She was present at all of the numerous proceedings that she was required to attend except the hearing at issue (Matter of Tesema H., 227 AD2d 122; Family Ct Act §§ 1042, 1028 [a]; see, Besharov, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 1042, at 119; Matter of Yem, 54 *77AD2d 673; see also, Matter of Ana Maria Q., 52 AD2d 607; Matter of Laticia B., 156 AD2d 681). In this dispositional hearing, it was error for the Family Court to base its ruling solely on the assertions of counsel and the caseworker rather than conduct an appropriate inquiry into the necessary and relevant facts (see, Family Ct Act § 1046 [c]; § 1055 [b] [iij; Besharov, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 1055, at 269; see also, Matter of Brian W., 199 AD2d 1021, lv denied 86 NY2d 711; Matter of Barbara R., 66 AD2d 800; Matter of Hanson, 51 AD2d 696).

The relief sought by appellant mother on this appeal is a remand for a hearing on the issue of custody. However, the pending custody action brought by appellant against respondent father in Family Court involves the same issue, and this appeal is thus rendered academic. We express no view regarding the merits of the pending matter. Concur — Williams, J. P., Mazzarelli, Rubin, Saxe and Buckley, JJ.