IN RE TANISEA

Ordered that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements.

The Family Court improvidently exercised its discretion in directing the Administration for Children's Services (hereinafter ACS) to pay the father's attorney's fee arising from an October 26, 2006 court appearance wherein ACS was not ready to proceed with a scheduled permanency planning hearing. An award of an attorney's fee is not justified where, as here, the ACS attorney's conduct was not "frivolous" as defined in 22 NYCRR 130-1.1 (a) ( cf. Brocklebank v City of Lockport, 198 AD2d 906), and the ACS attorney did not fail to appear as defined in 22 NYCRR 130-2.1 ( see Matter of Premo v Breslin, 89 NY2d 995, 997). In any event, the Family Court imposed the sanction without giving the ACS attorney any opportunity to be heard on the question of whether, and to what extent, sanctions were appropriate ( see 22 NYCRR 130-1.1 [d]; 130-2.1 [d]).