In re Cleveland W. , 684 N.Y.S.2d 121 ( 1998 )

—Order unanimously reversed on the law without costs, motion granted, order vacated and matter remitted to Erie County Family Court for further proceedings in accordance with the following Memorandum: Family Court abused its discretion in denying the motion of respondent to vacate an order revoking a suspended judgment terminating her parental rights. The order was entered after respondent failed to appear on an adjourned date of the fact-finding hearing and failed to satisfy the court that her excuse was legitimate.

“A parent has a right to be heard on matters concerning her child and the parent’s rights are not to be disregarded absent a convincing showing of waiver” (Matter of Kendra M., 175 AD2d 657, 658; see, Matter of Dominique L. B., 231 AD2d 948). There was no showing of waiver here. Respondent telephoned the court on the adjourned date and said that she was too ill to attend. Her attorney appeared and also so informed the court. Respondent later supplied a note from a physician assistant documenting her illness. Respondent never missed any other court appearance and promptly moved to vacate the order of disposition entered against her. The court acted arbitrarily and violated respondent’s due process rights in rejecting respondent’s excuse, terminating the hearing before completion, revoking the suspended judgment, and terminating respondent’s parental rights.

Because there was never a genuine default (see, Matter of Robert F., 200 AD2d 899; Matter of Cecelia A., 199 AD2d 582), respondent was not required to establish a reasonable excuse for her failure to appear and a meritorious defense (see, Matter of Geraldine Rose W., 196 AD2d 313, 318, lv dismissed 84 NY2d 967; see also, Matter of James R., 238 AD2d 962).

We remit the matter to Erie County Family Court for a new hearing on the petition to revoke the suspended judgment to be held before a different Judge. (Appeal from Order of Erie County Family Court, Szczur, J. — Vacate Order.) Present— Pine, J. P., Wisner, Pigott, Jr., Callahan and Fallon, JJ.