| Matter of Jaikob O. (William O.) |
| 2011 NY Slip Op 07314 [88 AD3d 1075] |
| October 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Jaikob O. and Another, Children Alleged to beNeglected. Tioga County Department of Social Services, Respondent; William O.,Appellant. |
—[*1] John H. Van Wert, Tioga County Department of Social Services, Owego, for respondent. Michael A. Somma, Vestal, attorney for the children.
Spain, J.P. Appeal from an order of the Family Court of Tioga County (Sgueglia, J.), enteredJune 24, 2009, which granted petitioner's application, in a proceeding pursuant to Family Ct Actarticle 10, to adjudicate the subject children to be neglected.
Respondent and his former live-in girlfriend, Michelle A. (hereinafter the mother), are theparents of two children, Raven O. and Jaikob O. (born in 2006 and 2007, respectively,hereinafter the children). During the relevant period of time, respondent was married to anotherwoman (hereinafter the wife) with whom he had a child also born in 2006 and three olderchildren, none in their custody.[FN1]In June 2008, petitioner commenced this neglect proceeding [*2]against respondent based upon allegations that he had exposed thechildren to domestic violence perpetrated against the mother and the wife, both of whomperiodically resided together with him and their children in 2008 and prior years. The petitionalso alleged, among other things, that respondent used marihuana in the presence of the childrenand was an untreated sex offender.[FN2]The children were removed and placed in petitioner's care.
On March 28, 2009, Family Court held a fact-finding hearing at which only themother,[FN3]the wife and respondent testified; the women testified to years of domestic violence against themas well as respondent's use of marihuana, both often in the presence of the children, whichrespondent denied. The court issued an order entered June 24, 2009 sustaining the allegation thatrespondent had neglected the children. The court concluded that he had engaged in a pattern ofdomestic abuse against the mother and the wife in the presence of the children and had engagedin illegal drug use in the household with the children present. Respondent's assigned counselfiled a notice of appeal from that fact-finding order.
Subsequently, Family Court held a combined dispositional and contempt hearing, after whichit concluded that respondent had violated a June 2008 order of protection by having prohibitedcontact with the mother, for which he was sentenced to a six-month jail term. With regard to thedisposition on the neglect determination, Family Court summarily—and without requiringa written motion (see Family Ct Act § 1039-b [a], [b] [6])—relievedpetitioner of its obligation to use diligent efforts to reunite respondent with the children. Thecourt also issued an open-ended stay-away order of protection[FN4]in favor of the mother and children. Respondent's counsel has not filed notices of appeal as tothese orders.
On respondent's appeal from the fact-finding order, upon review of the record viewed in itsentirety, we agree with his contention that, as a result of deficiencies in the representationprovided by his assigned trial counsel at the fact-finding hearing, he was denied meaningfulrepresentation (see Matter of Templetonv Templeton, 74 AD3d 1513, 1514 [2010]; Matter of Hurlburt v Behr, 70 AD3d 1266, 1267-1268 [2010],lv dismissed 15 NY3d 943 [2010]).
Counsel's ineffectiveness permeated the proceedings. At the fact-finding hearing, counselfailed to make an opening statement or to cross-examine petitioner's witnesses on relevantmatters such as the children's exposure to respondent's allegedly neglectful conduct during therelevant time period (i.e., February to June 2008). Indeed, counsel's cross-[*3]examination of the mother and the wife, both clearly young victimsof disturbing domestic violence, was at points tasteless and irrelevant, even prurient. Counselmade no motions at the close of petitioner's case and no closing arguments, stating only, "I thinkeverything's been said." Counsel never submitted—as directed by FamilyCourt—proposed findings of fact and conclusions of law. Likewise, petitioner submittedno findings or conclusions of law. Notably, at the close of the fact-finding hearing, Family Courtmerely stated that it found petitioner's witnesses to be "credible," but made no finding of neglect,deferring its decision thereon. Surprisingly, counsel then consented to immediately proceeding toa dispositional hearing.
Particularly disturbing on the issue of whether counsel provided meaningful representation isa letter dated April 23, 2009 sent by counsel to respondent in prison after the fact-findinghearing—but before a neglect determination was issued—in response to his requestfor a new attorney. The letter contains a not-so-subtle threat that counsel would not sendrespondent anything, or convey any information to or cooperate with his next attorney, if hepursued a change of attorneys; counsel also flaunted that he had achieved financial success, uponwhich he elaborated, with his "clients who have money" and essentially did not need thisassignment. The letter was certainly inappropriate and served to undermine any confidencerespondent might have had in counsel effectively representing him. Accordingly, the fact-findingorder must be reversed.
In light of the foregoing, all proceedings at which counsel represented respondent subsequentto the fact-finding hearing and order are invalid. We note that, thereafter, Family Court held ahearing—in June 2009—on the contempt petition that alleged that respondent hadviolated the 2008 temporary order of protection in favor of the mother and children by sendingher mail while he was incarcerated. Although respondent did not appear and the record does notestablish that he was represented by counsel in court in 2008 when that order was issued, andthere is no record evidence that respondent was served with the order, counsel failed to object toor raise the issue of the lack of any proof that respondent was served with that order, as requiredto hold him in contempt (see Matter ofEr-Mei Y., 29 AD3d 1013, 1016 [2006]). By order dated July 16, 2009, Family Courtfound that respondent had willfully violated that 2008 order of protection,but—again—counsel never filed a notice of appeal therefrom.
We also deem it important to point out that, with regard to the dispositional hearing, counselfailed to object to petitioner's oral motion to dispense with its duty to make diligent reunificationefforts for respondent and the children based upon the termination, years earlier, of respondent's(and the wife's) parental rights to their three oldest children (see Family Ct Act §1039-b [b] [6]). Such a motion by petitioner was required to be "in writing" and on noticeto respondent, allowing him "the opportunity to gather evidence and raise issues of fact inanswering papers and prepare for an evidentiary hearing" (Matter of Damion D., 42 AD3d 715, 716 [2007] [emphasis added];see Matter of Lindsey BB. [RuthBB.], 72 AD3d 1162, 1164 [2010]). Moreover, absolutely no proof was offered by anyparty at the dispositional hearing addressing the children's "best interests" either on the proprietyof terminating reasonable reunification efforts (see Family Ct Act § 1039-b [b] [6][last paragraph]) or on the ultimate disposition upon the neglect finding (see Family CtAct §§ 1045, 1052); the current status and placement of the children was notdisclosed at the hearing or in the dispositional order. Counsel filed no notice of appeal from theresulting dispositional order. As respondent was denied meaningful representation by trialcounsel at the fact-finding hearing, the fact-finding order, as well as the subsequent resultingorders of Family Court, cannot stand.[*4]
Rose, Lahtinen, Garry and Egan Jr., JJ., concur. Orderedthat the order is reversed, on the law, without costs, and matter remitted to the Family Court ofTioga County for further proceedings before a different judge, and, pending said proceedings, theexisting order of placement of the children in the joint custody of the mother and the maternalgrandparents is continued on a temporary basis until further order of said court.
Footnote 1: Respondent's parental rights tothe two oldest children were terminated in New Jersey in 2004 and these children were lateradopted. His rights to the third oldest child were terminated in 2005 in Pennsylvania.
Footnote 2: Respondent served a prison termin 2009 for failing to register as a sex offender. This Court upheld Family Court's denial of hisrequest for prison visitation (Matter ofWilliam O. v John A., 84 AD3d 1447 [2011]).
Footnote 3: The mother consented to afinding of neglect based upon a separate petition against her, prior to respondent's fact-findinghearing.
Footnote 4: Respondent's appellate counseladvised this Court at oral argument that Family Court issued an order entered in September 2011vacating that 2009 permanent order of protection, which had contained no expiration date.