| Matter of Deon M. (Vernon B.) |
| 2009 NY Slip Op 09842 [68 AD3d 1740] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Deon M., an Infant. Erie County Department ofSocial Services, Respondent; Vernon B., Appellant. |
—[*1] Joseph T. Jarzembek, Buffalo, for petitioner-respondent. David C. Schopp, Law Guardian, the Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D.Halvorsen of counsel), for Deon m.
Appeal from an order of the Family Court, Erie County (Patricia A. Maxwell, J.), enteredAugust 20, 2008 in a proceeding pursuant to Social Services Law § 384-b. The order,among other things, terminated respondent's parental rights.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs and the matter is remitted to Family Court, Erie County, for a new hearing.
Memorandum: Respondent father appeals from an order finding that he permanentlyneglected his son and terminating his parental rights with respect to his son. We agree with thefather that reversal is required because Family Court deprived him of his fundamental right tocounsel. On the scheduled date of the fact-finding hearing, the father appeared with his assignedcounsel. The father's attorney advised the court that the father "no longer wishe[d] for [him] toproceed as [the father's] attorney." The court responded, "[t]hen I hope he went to law schoolwhile he was locked up in jail because you have a trial today . . . ." When the fatherattempted to speak, the court cut him off after he had spoken only five words, and the courtstated, "[t]oo bad. I'm not adjourning it." The court then granted the motion of the father'sattorney to withdraw as counsel for the father, whereupon the court stated that the father could"retain himself then." The court conducted the fact-finding hearing, and the father did notcross-examine the single witness presented by petitioner, nor did he call any witnesses.
Pursuant to Family Court Act § 262 (a) (iii), a respondent in a proceeding pursuant toFamily Court Act article 6 "has the right to the assistance of counsel . . . Thedeprivation of a party's fundamental right to counsel is a denial of due process and requiresreversal, without regard to the merits of the unrepresented party's position" (Matter of Evan F., 29 AD3d 905,906 [2006]; see Matter of Casey N.,59 AD3d 625, 627 [2009], lv denied 12 NY3d 710 [2009]; Matter of David VV., 25 AD3d882, 883-884 [2006]). Although a party may proceed pro se, "[a] court's decision to permit aparty who is entitled to counsel to proceed pro se must be supported by a showing on the recordof a knowing, voluntary and intelligent waiver of [the right to counsel]" (David VV., 25AD3d at 884; see Casey N., 59 AD3d at 627; Matter of Kristin R.H. v Robert E.H., 48 AD3d 1278 [2008];Evan F., 29 [*2]AD3d at 907). In order for the court toensure that the waiver of the right to counsel is valid, "the court must conduct a 'searchinginquiry' of [the] party . . . [, and] there must be a showing that the party 'was awareof the dangers and disadvantages of proceeding without counsel' " (Casey N., 59 AD3dat 627; see Kristin R.H., 48 AD3d at 1279).
Where, as here, the court fails to conduct a searching inquiry, reversal is required (seee.g. Casey N., 59 AD3d at 629-630; Kristin R.H., 48 AD3d at 1279; EvanF., 29 AD3d at 907; David VV., 25 AD3d at 884-885; cf. Matter of Isiah FF., 41 AD3d900, 901-902 [2007]; Matter ofAnthony K., 11 AD3d 748, 749-750 [2004]). We therefore reverse the order and remitthe matter to Family Court for a new hearing. Present—Hurlbutt, J.P., Smith, Centra,Green and Pine, JJ.