| Matter of Casey N. |
| 2009 NY Slip Op 01223 [59 AD3d 625] |
| February 17, 2009 |
| Appellate Division, Second Department |
| In the Matter of Casey N., an Infant. Orange County Department ofSocial Services, Respondent; Terry S. et al., Appellants. (Proceeding No. 1.) In the Matter ofKeryn D., an Infant. Orange County Department of Social Services, Respondent; Terry S. et al.,Appellants. (Proceeding No. 2.) In the Matter of Tyler S., an Infant. Orange County Departmentof Social Services, Respondent; Terry S. et al., Appellants. (Proceeding No.3.) |
—[*1] Bahn Herzfeld & Multer, New York, N.Y. (Richard L. Herzfeld of counsel), for appellantLisa S. Christine Foy Stage, Goshen, N.Y., for respondent. Todd D. Kadish, Brooklyn, N.Y., attorney for the children.
In three related child neglect proceedings pursuant to Family Court Act article 10, the fatherappeals from (1) a fact-finding order of the Family Court, Orange County (Currier Woods, J.),dated July 9, 2007, and (2) an order of disposition of the same court dated September 5, 2007,which, after a hearing, inter alia, adjudicated that he neglected the children and placed his homeunder the supervision of the Orange County Department of Social Services for a period of oneyear, and the mother separately appeals from (1) a fact-finding order of the same court dated July9, 2007, and (2) an order of disposition of the same court dated September 5, 2007, which, after ahearing, inter alia, adjudicated that she neglected the children and placed her home under thesupervision of the Orange County Department of Social Services for a period of one year.
Ordered that the appeals from the fact-finding orders are dismissed, without costs ordisbursements, as the fact-finding orders were superseded by the orders of disposition; and it isfurther,
Ordered that the appeals from so much of the orders of disposition dated September 5, 2007,as placed the homes of the father and the mother under the supervision of the Orange CountyDepartment of Social Services for a period of one year are dismissed as academic, without costsor disbursements, as those portions of the orders expired by their own terms; and it is further,
Ordered that the order of disposition dated September 5, 2007, relating to the father, ismodified, on the law, by deleting the provisions thereof adjudicating that the father neglected thechildren Casey N. and Keryn D.; as so modified, the order of disposition dated September 5,2007, relating to the father, is affirmed insofar as reviewed, without costs or disbursements, andthe fact-finding order dated July 9, 2007, relating to the father is modified accordingly; and it isfurther,
Ordered that the order of disposition dated September 5, 2007, relating to the mother, isreversed insofar as reviewed, on the law, without costs or disbursements, the fact-finding orderdated July 9, 2007, relating to the mother, is modified accordingly, and the matter is remitted tothe Family Court, Orange County, for a new hearing and determination in accordance herewith.
The appeals from those portions of the orders of disposition dated September 5, 2007, whichplaced the homes of the father and the mother under the supervision of the Orange CountyDepartment of Social Services for a period of one year must be dismissed as academic becausethose portions of the orders expired by their own terms (see Matter of Regina P., 19 AD3d 698, 699 [2005]). However, theadjudication of neglect constitutes a permanent and significant stigma which might indirectlyaffect the appellants' status in any future proceedings. Therefore, the appeals from so much of theorders of disposition dated September 5, 2007, as adjudicated that the father and the motherneglected the children are not academic (see Matter of Regina P., 19 AD3d at 699).
A party in a proceeding pursuant to Family Court Act article 10 has both a constitutionalright and a statutory right to be represented by counsel (see US Const 6th Amend; NYConst, art 1, § 6; Family Ct Act § 262 [a] [i]; Matter of Jung [State Commn. on Jud. Conduct], 11 NY3d 365[2008]; Matter of Ella B., 30 NY2d 352, 356-357 [1972]). A party, however, may waivethe right to counsel and opt for self-representation (see People v Arroyo, 98 NY2d 101,103 [2002]; People v Smith, 92 NY2d 516, 520 [1998]; Matter of Jetter v Jetter, 43 AD3d821, 822 [2007]). Before permitting a party to proceed pro se, the court must determine thatthe party's decision to do so is made knowingly, intelligently, and voluntarily (see People vSmith, 92 NY2d 516, 520 [1998]). To ascertain whether a party's waiver of the right tocounsel meets these requirements, the court must conduct a "searching inquiry" of that party(People v Arroyo, 98 NY2d [*2]at 103; see People vSlaughter, 78 NY2d 485, 491 [1991]). While there is no "rigid formula" to the court'sinquiry, there must be a showing that the party "was aware of the dangers and disadvantages ofproceeding without counsel" (People vProvidence, 2 NY3d 579, 582 [2004]; see Matter of Evan F., 29 AD3d 905, 907 [2006]; see alsoFaretta v California, 422 US 806, 835 [1975]). For example, the court may inquire about thelitigant's "age, education, occupation, previous exposure to legal procedures and other relevantfactors bearing on a competent, intelligent, voluntary waiver" (People v Smith, 92 NY2dat 520). "Denial of the right of self-representation is not subject to harmless error analysis" (People v LaValle, 3 NY3d 88,106 [2004]; see Matter of Evan F., 29 AD3d at 906).
Here, the Family Court failed to sufficiently advise the mother of the risks ofself-representation. The entirety of the colloquy on this issue was as follows:
"the court: Do you wish Mr. [Gary] Eisenberg to represent you, ma'am?
"[lisa s.]: I don't believe he's representing my interests, but I don't think I have a choice nowdo I?
"the court: Well, you can represent yourself and he can advise you that's your choice.
"[lisa s.]: Yes, I would like to do that where he advises me, but I represent myself.
"the court: She's entitled to do what she wishes to do.
"ms. [linda] dasilva [Orange County District Attorney, counsel for the petitioner]: Oh, Iagree Judge.
"the court: I don't want her to have an attorney if she doesn't want it.
"ms. dasilva: Right.
"the court: And I don't want it on the record that she doesn't want Mr. Eisenberg representingher and then me [sic] proceed with Mr. Eisenberg.
"[lisa s.]: That's what I wanted from the inception, your Honor.
"the court: So if she wishes to represent herself, she can represent herself though I wouldcaution you against it and Mr. Eisenberg would be appointed to stay on the case as your advisor,ma'am.
"[lisa s.]: Okay.
"the court: So either he's going to do the questioning or you're going to do the questioning,but you have to follow the same legal rules that everyone else has to follow, what's your choice?
"[lisa s.]: I would like to do the questioning and be advised.
"the court: Do you want to discuss—[*3]
"[lisa s.]: Can I at least have a five—a coupleminutes with him?
"the court: Sure. I'll give you a couple minutes. Go ahead.
"[lisa s.]: All right.
"the court: You can step down for a few minutes. (The witness left the stand.)
"[lisa s.]: Just for like two minutes.
"the court: That's fine.
"[short recess]
"the court: All right, Mr. Eisenberg, we're back on the record. What decision did [Lisa S.]make?
"mr. eisenberg: Judge, [Lisa S.] is happy to have my assistance, but she feels she would liketo ask her questions because this way she'll have her say in court. As you know, she has a lot ofthings she wants to say, and she understands—
"the court: Right. She's not testifying now, she's asking questions.
"mr. eisenberg:—understood. She understands there's a format to doing this and she'sgoing to try to stick to that format, but she feels at least this way she herself is having her day incourt if she asks the questions. So I'm going to try to assist her as best I can with that.
"the court: All right. Go ahead, [Lisa S.]."
As the above illustrates, the only inquiry the Family Court conducted was to ask the mothertwice whether she wanted Eisenberg to represent her. Otherwise, it made only one declaratorystatement to the mother that generally cautioned her against self-representation, without detailingthe dangers and disadvantages of doing so, and informed her that she would have to follow thesame legal rules as the other parties. As such, the Family Court failed to conduct a sufficientlysearching inquiry of the mother to be reasonably certain that she understood the dangers anddisadvantages of giving up the fundamental right of counsel (see People v Smith, 92NY2d at 521; Matter of McGregor vBacchus, 54 AD3d 678 [2008]; Matter of Guzzo v Guzzo, 50 AD3d 687 [2008]). Also absent isany inquiry by the Family Court to evaluate the mother's competency to waive counsel and herunderstanding of the consequences of self-representation (see People v Arroyo, 98 NY2dat 104; People v Smith, 92 NY2d at 520; Matter of Jetter v Jetter, 43 AD3d at822). Further, to the extent the colloquy could be read to indicate that the court delegated its dutyto conduct a searching inquiry to the mother's counsel, there is no authority for the court to havedone so (cf. People v Delaron, 184 AD2d 653, 654 [1992]). In any event, there is noevidence that counsel conducted a searching inquiry. Accordingly, because the court did notensure that the mother's waiver of her right to counsel was made knowingly, intelligently, andvoluntarily, we reverse the September 5, 2008, order of disposition relating to the motherwithout regard to the merits (see People v Arroyo, 98 NY2d at 104; People vSmith, 92 NY2d at 520; Matter ofGuzzo v Guzzo, 50 AD3d 687 [2008]; Matter of Jetter v Jetter, 43 AD3d at 822;Matter of Hassig v Hassig, 34AD3d 1089 [2006]; Matter of EvanF., 29 AD3d 905 [2006]; [*4]Matter of RachelP., 286 AD2d 868 [2001]). Moreover, we remit the matter to the Family Court, OrangeCounty, for a new hearing and determination, upon a proper inquiry, into the mother'sunderstanding of the consequences of self-representation (see Matter of McGregor v Bacchus, 54 AD3d 678 [2008]; Matter of Guzzo v Guzzo, 50 AD3d687 [2008]).
The determination that the father neglected the child Tyler S. is supported by apreponderance of the evidence (see Family Ct Act § 1012 [f] [i] [B]; Matter of Ifeiye O., 53 AD3d 501[2008]). Despite his knowledge of the violence between Tyler S. and the mother, the father failedto protect Tyler S. when he left him alone with the mother unsupervised (see Matter of Selena J., 35 AD3d610 [2006]; Matter of Erin QQ., 180 AD2d 944, 945 [1992]; Matter of CarrieR., 156 AD2d 756 [1989]). However, the record does not support the determinations that thefather neglected the children Casey N. and Keryn D. Mastro, J.P., Miller, Carni and McCarthy,JJ., concur.