Opinion
2018–02310 Docket No. G–5123–17
11-21-2018
In the MATTER OF KRYSTLE L.B. (Anonymous), Petitioner-Respondent, v. CRYSTAL L.W. (Anonymous), Respondent-Respondent, James E.S. (Anonymous) III, Appellant.
Del Atwell, East Hampton, NY, for respondent-appellant.
Del Atwell, East Hampton, NY, for respondent-appellant.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, ROBERT J. MILLER, JJ.
DECISION & ORDER
ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Dutchess County, for a new hearing in accordance herewith and a new determination thereafter on the guardianship petition.
An incarcerated parent has a fundamental right to be heard in a proceeding impacting the care and control of his or her child (see Matter of Jung [State Commn. on Jud. Conduct] , 11 N.Y.3d 365, 373, 870 N.Y.S.2d 819, 899 N.E.2d 925 ; Matter of Tristram K. , 25 A.D.3d 222, 226, 804 N.Y.S.2d 83 ). Here, the incarcerated father's rights were violated when the Family Court elected to hear and determine the guardianship petition without producing the father in court or affording him an opportunity to be heard.
Accordingly, we reverse the order appealed from, and remit the matter to the Family Court, Dutchess County, for a hearing at which the father's constitutional right to be heard will not be abridged and a new determination thereafter on the guardianship petition.
In light of our determination, we need not reach the father's remaining contentions.
BALKIN, J.P., CHAMBERS, COHEN and MILLER, JJ., concur.