| Matter of Broome County Dept. of Social Servs. v Mitchell |
| 2007 NY Slip Op 09831 [46 AD3d 1034] |
| December 13, 2007 |
| Appellate Division, Third Department |
| In the Matter of Broome County Department of Social Services, onBehalf of Irene Shears, Respondent, v Scott Mitchell, Appellant. |
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Rose, J. Appeal from an order of the Family Court of Broome County (Pines, J.), enteredDecember 11, 2006, which, in a proceeding pursuant to Family Ct Act article 4, committedrespondent to a jail term of six months.
Petitioner filed a petition alleging that respondent had failed to obey a prior child supportorder and requesting a money judgment for arrears. When the parties appeared, the SupportMagistrate partially advised respondent of his right to counsel and then, after listening to hisclaim of an inability to pay support, found a willful violation and recommended a six-month jailsentence. At the next appearance, Family Court fully advised respondent of his right to counseland respondent requested assignment of counsel. On the adjourned date, assigned counselappeared, but respondent did not. Family Court thereupon found respondent to be in default,confirmed the Support Magistrate's finding of a willful violation, sentenced respondent to sixmonths in jail and issued an arrest warrant. After execution of the warrant, respondent appearedwithout counsel and Family Court remanded him to jail. Defendant appealed and this Courtgranted a stay pending appeal.
We find merit in respondent's argument that he was not fully advised of his right to counselupon his first appearance and was deprived of his right to counsel in later proceedings. Therecord confirms that the Support Magistrate failed to advise respondent of his rights to an [*2]adjournment to confer with counsel, which advice was statutorilymandated because the Support Magistrate treated the petition as seeking respondent'sincarceration for willful violation of a support order (see Family Ct Act §§261, 262 [a] [vi]; Matter of Hassig vHassig, 34 AD3d 1089, 1090 [2006]; Matter of Circe v Circe, 289 AD2d 620,621 [2001]; Matter of Gaudette v Gaudette, 263 AD2d 620, 621 [1999]). The SupportMagistrate also failed to assure that respondent understood his rights and knowingly andintelligently waived them before proceeding (see Matter of Anderson v Hailey, 13 AD3d 911, 912 [2004]). Later,Family Court failed to adjourn the hearing on the petition when respondent did not appear andassigned counsel stated that he had not met or spoken with respondent. In addition, afterrespondent was arrested, appeared in court and stated that he had not been informed of theassignment of counsel, the court remanded him to jail without inquiring as to counsel'swhereabouts or explaining on the record why it was proceeding without counsel present. Wefurther note that Family Court incarcerated respondent even though petitioner did not requestsuch relief in either the petition or open court. Nor has petitioner filed a brief in response to thisappeal. Accordingly, there must be a reversal and a remittal of the matter for a new hearing (see e.g. Matter of Scala v Tefft, 42AD3d 689, 691-692 [2007]).
In view of our determination, respondent's remaining contentions are academic.
Crew III, J.P., Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the order is reversed,on the law, without costs, and matter remitted to the Family Court of Broome County for furtherproceedings not inconsistent with this Court's decision.