| Matter of Mitchell WW. (Andrew WW.) |
| 2010 NY Slip Op 04676 [74 AD3d 1409] |
| June 3, 2010 |
| Appellate Division, Third Department |
| In the Matter of Mitchell WW., a Child Alleged to be a Neglected.Columbia County Department of Social Services, Respondent; Andrew WW., Appellant, et al.,Respondent. |
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Peters, J.P. Appeal from an order of the Family Court of Columbia County (Nichols, J.),entered May 21, 2009, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 10, to adjudicate respondents' child to be neglected.
Respondents, Andrew WW. (hereinafter the father) and Judith WW. (hereinafter the mother),are the parents of a son (born in 2002). In 2008, petitioner commenced a neglect proceedingagainst the mother alleging that she had threatened to commit suicide in the presence of the childand was abusing illegal drugs. Family Court issued an order of protection prohibiting contactbetween the mother and the child and awarded custody to the father. Shortly thereafter, petitionercommenced the instant proceeding against respondents alleging, among other things, that thefather was abusing the mother's prescription medication. At the initial appearance on thatpetition, the father waived his right to counsel and Family Court issued a [*2]temporary order of removal placing the child with his maternalgrandmother and her husband. Following a hearing pursuant to Family Ct Act § 1027, atwhich the father proceeded pro se, Family Court continued the child's placement and entered anorder of protection against the father in favor of the child.
Upon a fact-finding hearing, Family Court sustained the petition of neglect against thefather, finding that he abused, and inappropriately solicited and obtained, prescriptionmedication from the mother, failed to engage in an appropriate substance abuse program andprovided a program of alcohol treatment to a self-admitted alcoholic within the family homewhile the child was present.[FN1] After a dispositional hearing, the child was placed under the guardianship of his maternalgrandmother. The father now appeals.
The father initially claims that Family Court erred in permitting him to represent himself atthe removal hearing. We disagree. "The decision to permit a party who is entitled to counsel toproceed pro se must be supported by a showing on the record of a knowing, voluntary andintelligent waiver of the right to counsel" (Matter of Anthony K., 11 AD3d 748, 749 [2004] [citationsomitted]; accord Matter of IsiahFF., 41 AD3d 900, 901 [2007]; see Matter of David VV., 25 AD3d 882, 883-884 [2006], lvdenied 12 NY3d 711 [2009]). At the initial appearance, after Family Court advised the fatherof his right to counsel, the father stated his desire to represent himself. Before permitting him todo so, Family Court questioned the father about his education and work experience, explainedthat proceeding pro se would put him at a "significant disadvantage" without training in the law,and advised him that he would be bound by the same rules of law and procedure applicable to anattorney. The court further explained the nature of the petition filed against him and the legalramifications of a finding of neglect, and advised him that neither petitioner, the attorney for thechild nor his wife's attorney would be representing his interests. The father confirmed hisunderstanding of the consequences and perils of self representation, denied the allegations in thepetition and proceeded to represent himself at the removal hearing the following day. Underthese circumstances, we are satisfied that the father's "decision to proceed pro se was aninformed and voluntary one made with full awareness of the risks inherent in representinghimself" (Matter of Bombard v Bombard, 254 AD2d 529, 530 [1998], lv denied93 NY2d 804 [1999]; see Matter of Isiah FF., 41 AD3d at 901-902; Matter ofAnthony K., 11 AD3d at 749-750; Matter of Bauer v Bost, 298 AD2d 648, 650[2002]).[FN2][*3]
The father next asserts that Family Court committedevidentiary errors at the removal hearing. However, by failing to object to any of the purportederrors he now raises, he has not preserved these issues for our review (see Matter of Hobb Y., 56 AD3d998, 1000 [2008]; Matter ofConstance NN., 47 AD3d 986, 986 [2008]). In any event, the father's arguments in thisregard are rendered moot by the final fact-finding and dispositional orders (see Matter of Chelsea BB., 34 AD3d1085, 1088 [2006], lv denied 8 NY3d 806 [2007]; Matter of Frank Y., 11 AD3d 740,743 [2004]; Matter of Tantalyn TT., 115 AD2d 799, 800 [1985]), which were predicatedsolely on evidence introduced at the fact-finding hearing (compare Matter of Eryck N., 17 AD3d 723, 725 [2005]).
Turning to the father's challenge to the finding of neglect, such a finding will be sustained ifthere is a showing by a preponderance of the evidence (see Family Ct Act § 1046[b] [i]) that the child's physical, mental or emotional condition has been impaired or is inimminent danger of becoming impaired as a result of the parent's failure to exercise a minimumdegree of care in providing the child with proper supervision or guardianship (seeFamily Ct Act § 1012 [f] [i]; Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]; Matter of Stephiana UU., 66 AD3d1160, 1161 [2009]). "Significantly, a finding of neglect need not be based upon actual injuryor impairment, but only an imminent threat that such injury or impairment may result" (Matter of Shalyse WW., 63 AD3d1193, 1195-1196 [2009], lv denied 13 NY3d 704 [2009] [citations omitted]; seeMatter of Xavier II., 58 AD3d 898, 899 [2009]; Matter of John QQ., 19 AD3d 754, 756 [2005]). In assessingwhether there has been a failure to exercise a minimum degree of care, "parental behavior mustbe evaluated 'objectively,' in light of whether 'a reasonable and prudent parent [would] have soacted, or failed to act, under the circumstances then and there existing' " (Matter of Rebecca KK., 51 AD3d1086, 1087 [2008], quoting Nicholson v Scoppetta, 3 NY3d at 370; see Matter of Chelsea M., 61 AD3d1030, 1031 [2009]).
Applying these principles, we conclude that petitioner established the father's neglect by apreponderance of the evidence. Testimony from one of petitioner's caseworkers and the fatherhimself established that the father permitted a friend with an alcohol addiction to stay at thefamily house, often overnight, for the purpose of treating his alcohol problem. As part of this"detox" program, the father would provide this individual with one to three beers a day,depending on the severity of his physical withdrawal symptoms, and would monitor his alcoholconsumption. Notably, the child was present in the home while this "detox" was taking place.
More significantly, evidence was presented that the father abused and misused both his own,as well as his wife's, prescription medication, and failed to follow through with substance abusecounseling and treatment. Although the father had his own prescription for Oxycontin, a verystrong and highly addictive opiate-based painkiller, he admitted to also taking the mother'sOxycontin at times. Furthermore, the child's maternal grandmother testified regarding anincident where she and her husband discovered an envelope in the child's laundry addressed tothe father which contained approximately 30 Oxycontin pills. When the grandmother confrontedthe mother, she stated that the father demanded that she send the pharmaceutical with the child'sbelongings and threatened that she would never see the child again if she did not comply. Noreasonable and prudent parent would request that these pills be placed in a child's belongingsgiven the potential for the child to gain access to them. The father's conduct in this regardpresented an imminent risk of physical harm to the child (see Nicholson v Scoppetta, 3NY3d at [*4]370-371). Moreover, a caseworker testified that thefather ingested Oxycontin by snorting it and possessed a grinder for that purpose. Although thefather denied such conduct, Family Court specifically found his testimony to be incredible andwe accord great deference to the court's credibility determinations where, as here, they aresupported in the record (see Matter ofAlaina E., 33 AD3d 1084, 1086 [2006]; Matter of Collin H., 28 AD3d 806, 808 [2006]; Matter of Christine II., 13 AD3d922, 923 [2004]). Taken as a whole, the foregoing evidence provided a sound andsubstantial basis to support Family Court's finding of neglect (see Matter of Lindsey BB. [Ruth BB.],70 AD3d 1205, 1207 [2010]; Matter of Justin J., 25 AD3d 1031, 1033 [2006]).
Finally, Family Court did not abuse its discretion in requiring visitation to be supervised bypetitioner or an agency approved by petitioner, rather than by a third party. " '[I]t is well settledthat the standard to be applied in determining issues of visitation is the best interest of the child' "(Matter of Larry v O'Neill, 307 AD2d 410, 411 [2003], quoting Matter of Mix vGray, 265 AD2d 692, 693 [1999]; see Matter of Hobb Y., 56 AD3d at 999). Here,although Family Court permitted the child's maternal grandparents to supervise visitationfollowing the removal hearing, the court subsequently concluded that, based on the credibleevidence presented at the fact-finding hearing regarding the father's substance abuse problem,the child was at risk of harm even under the supervision of a third party. Family Court found itnecessary that visitation be supervised by petitioner or an agency approved by petitioner in orderto ensure the supervisor's ability "to deal with someone under the influence of medications."Furthermore, prior to Family Court's disposition regarding visitation, the child's attorneyrevealed to the court that the father had recently been charged with driving under the influence,which was allegedly his third offense, and urged that this behavior further demonstrated aconcern regarding third-party supervision. On this record, we find no basis to disturb FamilyCourt's determination that the child's best interests would be served by requiring that visitationbe supervised by petitioner or an approved agency (see Matter of Hardy v Short, 244AD2d 669, 670 [1997]; see also Matterof Taylor v Fry, 47 AD3d 1130, 1132 [2008]).
Rose, Stein, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote 1: The mother entered admissionsto providing the father with 20 Oxycontin pills from her prescription, as well as attempting toprovide him with 30 of such pills on a separate occasion, received an adjournment incontemplation of dismissal and agreed to a voluntary placement of the child with her mother andstepfather.
Footnote 2: Despite the father's suggestionthat Family Court was required to, sua sponte, appoint standby counsel to aid him in the eventthat he changed his mind about proceeding pro se, he has no right to such a hybrid form ofrepresentation (see People v Mirenda, 57 NY2d 261, 265 [1982]). Rather, the assignmentof standby counsel is a matter of discretion upon the request of a party, and no such request wasmade by the father here (see id. at 266; see also People v Rodriguez, 95 NY2d497, 501-502 [2000]).