Opinion
03-15-2017
In the Matter of Carduck BAGOT, appellant, v. Stephanie McCLAIN, respondent.
Zvi Ostrin, New York, NY, for appellant. Placidus Aguwa, Jamaica, NY, for respondent. Angela S. Hull, Jamaica, NY, attorney for the child.
Zvi Ostrin, New York, NY, for appellant.
Placidus Aguwa, Jamaica, NY, for respondent.
Angela S. Hull, Jamaica, NY, attorney for the child.
MARK C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the father from an order of the Family Court, Queens County (Carol Ann Stokinger, J.), dated September 28, 2015. The order, after a hearing, dismissed the father's petition for visitation with the subject child, without prejudice.
ORDERED that the order is affirmed, without costs or disbursements.
The petitioner and the respondent are the parents of a daughter born in December 2009. The father was incarcerated when the child was four months old, and has not had any contact with her since that time. While incarcerated, the father commenced this proceeding pursuant to Family Court Act article 6 seeking visitation with the child. The Family Court ordered a forensic evaluation of the parties and the child; the evaluator concluded that reintroducing the child to the father while he was incarcerated would be "highly disruptive" and "possibly traumatic" for the child. In February 2015, upon learning that the father expected to be released from prison in 90 days, the court issued an order granting the father three psychologist-supervised visits with the child, to be held after his release from prison. The father was not released from prison as anticipated, and the supervised visitation never occurred.
At a court appearance on September 28, 2015, the father, who was still incarcerated, appeared via video conference. However, there was a defective audio connection, and the father's voice could not be heard. The mother and the attorney for the child requested that the father's petition be dismissed without prejudice because the father's prison release date was unknown and the arrangement to reintroduce the child to the father could not be carried out until he was released. The father's counsel argued against dismissal and requested an adjournment. The Family Court dismissed the father's petition without prejudice, and the father appeals.
The father's sole contention on appeal-that the Family Court deprived him of due process by dismissing his petition at an appearance at which there was a defective audio connection-is unpreserved for appellate review, as it was not raised before the Family Court (see Matter of Kleevuort C. [Fredlyn V.], 84 A.D.3d 1371, 1371, 925 N.Y.S.2d 119 ) and, in any event, is without merit. "The right to be heard is fundamental to our system of justice" (Matter of Jung [State Commn. on Jud. Conduct], 11 N.Y.3d 365, 372–373, 870 N.Y.S.2d 819, 899 N.E.2d 925 ), and " ‘even 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 Locklear v. Andrews, 118 A.D.3d 1001, 1003, 989 N.Y.S.2d 92, quoting Matter of Tristram K., 25 A.D.3d 222, 226, 804 N.Y.S.2d 83 ; see Matter of Thomson v. Battle, 99 A.D.3d 804, 806, 952 N.Y.S.2d 251 ; Matter of Kendra M., 175 A.D.2d 657, 658, 572 N.Y.S.2d 583 ). Here, the father was afforded due process since he was represented by an attorney who advocated for his interests (see Matter of Otrosinka v. Hageman, 144 A.D.3d 1609, 1610, 41 N.Y.S.3d 182 ; cf. Matter of Locklear v. Andrews, 118 A.D.3d at 1003, 989 N.Y.S.2d 92 ; Matter of Whiteford v. Jones, 104 A.D.3d 995, 996, 960 N.Y.S.2d 555 ; Matter of Thomson v. Battle, 99 A.D.3d at 806, 952 N.Y.S.2d 251 ; Matter of Tristram K., 25 A.D.3d at 226, 804 N.Y.S.2d 83 ).
Moreover, since the visitation petition was dismissed without prejudice, the father was free to file another petition.