| Matter of Broome County Dept. of Social Servs. v Basa |
| 2008 NY Slip Op 09323 [56 AD3d 1092] |
| November 26, 2008 |
| Appellate Division, Third Department |
| In the Matter of Broome County Department of Social Services, onBehalf of Rose J. Estrada, Respondent, v Frederick A. Basa,Appellant. |
—[*1] Rose J. Estrada, Binghamton, respondent pro se.
Kane, J. Appeal from an order of the Family Court of Broome County (Pines, J.), enteredMarch 26, 2008, which granted petitioner's application, in a proceeding pursuant to Family CtAct article 4, to hold respondent in violation of a prior child support order.
Petitioner filed a petition in September 2006 alleging that respondent had failed to obey aprior child support order. Represented by assigned counsel, respondent appeared on the matter inJanuary 2007 and was sentenced to six months in jail. Shortly thereafter, respondent's sentencewas suspended and he was released pursuant to an order that directed him to resume childsupport payments and bring his arrears current within three months. After failing to appear for ascheduled hearing in April 2007, an arrest warrant was issued and respondent was taken intocustody in February 2008. Respondent thereafter appeared without representation, at which timeFamily Court informed respondent that he was not eligible to be represented by assigned counseland remanded respondent pending a hearing. At a hearing in early March 2008, the courtinformed respondent of his right to counsel and adjourned the matter in order for respondent toretain counsel. At the subsequent hearing, respondent again appeared without counsel and,without further colloquy regarding his right to representation, the court proceeded to findrespondent in violation and reinstate his six-month jail sentence. Respondent now appeals and[*2]we reverse.
An adjudication in Family Court cannot result in incarceration unless a party is "fullyinformed of the statutory rights to be represented by counsel, to seek an adjournment to consultwith counsel and to have counsel provided if he or she cannot afford to retain counsel" (People ex rel. Foote v Lorey, 28 AD3d917, 918 [2006], lv dismissed 7 NY3d 863 [2006], lv denied 8 NY3d 803[2007]; see Family Ct Act § 262 [a] [vi]; Matter of Chase v Chase, 45 AD3d 1206, 1208 [2007]). As such,the court is required to conduct an in-depth inquiry, including investigation into a party'sindigence, to assure that a party understands his or her rights, and that any waiver ofrepresentation is made knowingly, intelligently and voluntarily (see Matter of Broome County Dept. ofSocial Servs. v Mitchell, 46 AD3d 1034, 1034 [2007]; People ex rel. Foote vLorey, 28 AD3d at 918; Matter ofBrunelle v Bibeau, 18 AD3d 927, 928-929 [2005]; Matter of Lee v Stark, 1 AD3d 815, 815-816 [2003]).
Here, during his February 2008 hearing, respondent stated his desire to be represented by anattorney but, after a limited inquiry into respondent's earnings, he was informed by Family Courtthat he would not be eligible for assigned counsel. At his subsequent hearing in early March2008, respondent again evinced his desire to be represented by counsel and, apparently believingthat he was ineligible to qualify for assigned counsel, agreed to an adjournment during whichtime he would attempt to retain counsel. However, at respondent's subsequent hearing, heinformed the court that he was financially unable to retain counsel and, rather than addressingrespondent's lack of representation, the court immediately proceeded to adjudicate the merits andimposed a six-month jail sentence on respondent. Given the confusion concerning respondent'sdesire to have counsel and his eligibility for assigned counsel, we find that the record before usdoes not indicate that respondent made a knowing and intelligent waiver of his rights to berepresented by counsel (see People ex rel. Foote v Lorey, 28 AD3d at 918-919; Matter of Anderson v Hailey, 13 AD3d911, 912 [2004]). Accordingly, the matter must be reversed and remitted for a new hearing(see Matter of Broome County Dept. of Social Servs. v Mitchell, 46 AD3d at 1035).
Mercure, J.P., Carpinello, Rose and Malone Jr., JJ., concur. Ordered that the order isreversed, on the law, without costs, and matter remitted to the Family Court of Broome Countyfor further proceedings not inconsistent with this Court's decision.