| Matter of Commissioner of Genesee County Dept. of Social Servs. vJones |
| 2011 NY Slip Op 06670 [87 AD3d 1275] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Commissioner of Genesee County Department ofSocial Services, on Behalf of Nakeeta Gibson, Respondent, v Jerrell J.T. Jones,Appellant. |
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Appeal from an order of the Family Court, Genesee County (Eric R. Adams, J.), enteredNovember 9, 2010 in a proceeding pursuant to Family Court Act article 4. The order committedrespondent to the Genesee County Jail for a period of six months.
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, Genesee County, for a new hearing.
Memorandum: Respondent father appeals from an order confirming the Support Magistrate'sdetermination that he willfully failed to obey an order of Family Court and sentencing him to sixmonths in jail. We agree with the father that the court erred in allowing him to proceed pro se atthe confirmation hearing.
"A person who faces the possibility of imprisonment stemming from the willful violation ofa previous order of the court has the right to the assistance of counsel" (Matter of Scott v Scott, 62 AD3d714, 715 [2009]; see Family Ct Act § 262 [a] [vi]; Matter of Tanya T. McD. v TimothyE.D., 63 AD3d 423 [2009]; Matter of Keenan v Keenan, 51 AD3d 1075, 1077 [2008]). "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 . . .Although a party may proceed pro se, [a] court's decision to permit a party who is entitled tocounsel to proceed pro se must be supported by a showing on the record of a knowing, voluntaryand intelligent waiver of [the right to counsel] . . . In order for the court to ensurethat the waiver of the right to counsel is valid, the court must conduct a searching inquiry of [the]party . . . [, and] there must be a showing that the party was aware of the dangersand disadvantages of proceeding without counsel" (Matter of Deon M. [Vernon B.], 68 AD3d 1740, 1741-1742 [2009][internal quotation marks omitted]; seeMatter of Kathleen K. [Steven K.], 17 NY3d 380 [2011]; Matter of Casey N., 59 AD3d 625,627-628 [2009], lv denied 12 NY3d 710 [2009]). "Where, as here, the court fails toconduct a searching inquiry, reversal is required" (Deon M., 68 AD3d at 1742). Wetherefore reverse the order and remit the matter to Family Court for a new hearing.Present—Scudder, P.J., Centra, Fahey, Green and Gorski, JJ.