| Matter of Spencer v Spencer |
| 2010 NY Slip Op 07356 [77 AD3d 761] |
| October 12, 2010 |
| Appellate Division, Second Department |
| In the Matter of Leonie J. Spencer, Appellant, v Ronald A.Spencer, Respondent. |
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In a family offense proceeding pursuant to Family Court Act article 8, the petitioner appeals froman order of the Family Court, Kings County (Sheares, J.), dated September 28, 2009, which deniedthe petition and dismissed the proceeding.
Ordered that the order is reversed, on the law, with costs, the petition is reinstated, and the matteris remitted to the Family Court, Kings County, for further proceedings in accordance herewith.
Family Court Act § 262 (a) (ii) confers the right to the assistance of counsel upon parties inproceedings brought pursuant to Family Court Act article 8 (see Matter of Knight v Knight, 59 AD3d 445, 446 [2009]). A party,however, may waive the right to counsel, provided that the waiver is knowing, voluntary, and intelligent(see People v Arroyo, 98 NY2d 101, 103 [2002]; Matter of Jetter v Jetter, 43 AD3d 821, 822 [2007]). To determinewhether a party is validly waiving the right to counsel, the court must conduct a "searching inquiry" ofthe party who wishes to waive that right and thus proceed pro se (People v Slaughter, 78NY2d 485, 491 [1991] [internal quotation marks omitted]; see Matter of Jetter v Jetter, 43AD3d at 822).
Here, the petitioner was entitled to be represented by counsel, as she was a petitioner in aproceeding pursuant to Family Court Act article 8 (see Family Ct Act § 262 [a] [ii]).The record, however, is inadequate to demonstrate that the petitioner validly waived her right tocounsel (see Matter of Casey N., 59AD3d 625, 628-630 [2009]; Matter ofMcGregor v Bacchus, 54 AD3d 678, 678-679 [2008]). Accordingly, the order must bereversed, the petition reinstated, and the matter remitted to the Family Court, Kings County, for aproper inquiry into whether the petitioner understands the consequences of self representation.Thereafter, as the petitioner's allegations stated a cause of action constituting a family offense pursuantto Family Court Act § 821 (1), a fact-finding hearing must be held on the matter (seeFamily Ct Act § 832). Rivera, J.P., Skelos, Chambers and Roman, JJ., concur.