Opinion
02-02-2024
In the MATTER OF ANTHONY J. Onondaga County Department of Children and Family Services, Petitioner-Respondent; v. Siobvan M., Respondent-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS R. BABILON OF COUNSEL), FOR RESPONDENT-APPELLANT. ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (JOSEPH M. MARZOCCHI OF COUNSEL), FOR PETITIONER-RESPONDENT.
Appeal from an order of the Family Court, Onondaga County (Julie A. Cerio, J.), entered June 13, 2022, in a proceeding pursuant to Social Services Law § 884-b. The order, among other things, terminated respondent’s parental rights with respect to the subject child.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS R. BABILON OF COUNSEL), FOR RESPONDENT-APPELLANT.
ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (JOSEPH M. MARZOCCHI OF COUNSEL), FOR PETITIONER-RESPONDENT.
WALTER BURKARD, MANLIUS, ATTORNEY FOR THE CHILD.
PRESENT; WHALEN, P.J., LINDLEY, MONTOUR, OGDEN, AND DELCONTE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed in the interest of justice and on the law without costs, and the matter is remitted to Family Court, Onondaga County, for further proceedings in accordance with the following memorandum: In this proceeding pursuant to Social Services Law § 384-b, respondent mother appeals from an order of disposition that, inter alia, adjudicated the subject child to be permanently neglected, terminated the mother’s, parental rights, and transferred custody of the child to petitioner. We reverse.
[1] We agree with the mother that she was denied due process of law based upon the bias against her displayed by the Family Court Judge. Initially, we note that the mother’s contention is unpreserved for our review inasmuch as the mother did not make a motion for the Family Court Judge to recuse herself (see Matter of Baby Girl Z. [Yaroslava Z.], 140 A.D.3d 893, 894; 85 N.Y.S.3d 129 [2d Dept. 2016]; see generally Matter of Melish v. Rime, 221 A.D.3d 1560, 1561, 200 N.Y.S.3d 235 [4th Dept. 2023]; Matter of Tartaglia v. Tartaglia, 188 A.D.3d 1754, 1756, 136 N.Y.S.3d 646 [4th Dept. 2020]). Nevertheless, we exercise our power to review that contention in the interest of justice.
[2–4] It is well established that "[i]n New York, the factfinding stage of a state-initiated permanent neglect proceeding bears many of the indicia of a criminal trial" (Santosky v. Kramer, 455 U.S. 745, 762, 102 S.Ct. 1388, 71 L.Ed.2d 599 [1982]). The State "must provide the parents with fundamentally fair procedures" (id. at 754, 102 S.Ct. 1388; see Matter of Tammie Z., 66 N.Y.2d 1, 4, 494 N.Y.S.2d 686, 484 N.E.2d 1038 [1985]; Matter of Jaleel F., 63 A.D.3d 1539, 1540-1541, 881 N.Y.S.2d 242 [4th Dept. 2009]), including the right to a hearing before an impartial factfinder (see Baby Girl Z., 140 A.D.3d at 894-895, 35 N.Y.S.3d 129). Here, however, the record demonstrates that Family Court "had a predetermined outcome of the case in mind during the hearing" (id. at 894, 35 N.Y.S.3d 129). During a break in the hearing testimony, a discussion occurred on the record with regard to a voluntary surrender. When the mother changed her mind and stated that she would not give up her child, the court responded, "Then I’m going to do it." At that point, the only evidence that had been presented was the direct testimony of one caseworker. The court’s comments, in addition to expressing a preconceived opinion of the case, amounted to a threat that, should the mother continue with the fact-finding hearing, the court would terminate her parental rights (cf. Matter of Jenny A. v. Cayuga County Dept. of Health, & Human Serve., 50 A.D.3d 1583, 1583, 857 N.Y.S.2d 845 [4th Dept. 2008], lv dismissed 11 N.Y.3d 809, 868 N.Y.S.2d 587, 897 N.E.2d 1069 [2008]). Those comments were impermissibly coercive (see generally Social Services Law § 383-c [6] [d]). That the court made good on its promise to terminate the mother’s parental rights cannot be tolerated.
The record further demonstrates that the Family Court Judge was annoyed with the mother’s refusal to surrender her parental rights to the child. We are compelled to remind the Family Court Judge "that even difficult or obstreperous litigants are entitled to ‘patient, dignified and courteous’ treatment from the court, and that judges must perform their duties ‘without bias or prejudice’ " (Matter of Zyion B., 224 A.D.3d 1285, — N.Y.S.3d — [Feb. 2, 2024] [4th Dept. 2024], quoting 22 NYCRR 100.3 [B] [3], [4]).
Given the preconceived opinion expressed and the lack of impartiality exhibited by the Family Court Judge in this case, the matter must be remitted to Family Court for a new hearing and determination by a different judge (see Matter of Amanda G., 64 A.D.3d 595, 596, 882 N.Y.S.2d 490 [2d Dept. 2009]).
In light of our determination, we do not reach the mother’s remaining contentions.