Opinion
June 5, 1992
Appeal from the Monroe County Family Court, Miller, J.
Present — Callahan, J.P., Green, Pine, Lawton and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: We reject respondent's contention that she was deprived of the right to cross-examine witnesses. At the time that the fact-finding hearing was scheduled, Family Court warned respondent that, if she failed to appear, the hearing would be held in her absence and her parental rights could be terminated. Respondent assured the court that she understood the warning, but failed to appear at the fact-finding hearing or at the subsequent dispositional hearing. Respondent's attorney appeared at the hearings, advised the court that she was ready to proceed but objected to holding the hearings in respondent's absence. As each witness testified, respondent's attorney declined to cross-examine on the ground that she could not conduct meaningful cross-examination without respondent's participation. Thus, respondent was afforded the opportunity to cross-examine the witnesses but, by the actions of her counsel and as a result of her unexplained absence from the proceedings, failed to avail herself of that opportunity, thereby waiving her right to cross-examine (see, Matter of White, 2 N.Y.2d 309, 314; Bradley v. Mirick, 91 N.Y. 293, 295-296).
Family Court properly declined to hold a hearing to determine whether respondent's failure to appear was willful or inadvertent. In order to be relieved of her default, respondent was required to provide a reasonable excuse for her absence and proof of merit (see, Matter of Male H., 179 A.D.2d 384; Matter of Linday E., 177 A.D.2d 276; Matter of Jones, 128 A.D.2d 403). Neither showing was made by respondent, and Family Court was under no obligation to conduct an independent inquiry into the reasons for the mother's absence.
The record supports Family Court's conclusion that respondent had the physical and financial ability to maintain contact with and plan for the future of her children (see, Social Services Law § 384-b [a]).