| Matter of Tavianna CC. (Maceo CC.) |
| 2012 NY Slip Op 07167 [99 AD3d 1132] |
| October 25, 2012 |
| Appellate Division, Third Department |
| In the Matter of Tavianna CC. and Others, Alleged to be NeglectedChildren. Washington County Department of Social Services, Respondent; Maceo CC.,Appellant. |
—[*1] Daniel S. Martindale, Washington County Department of Social Services, Fort Edward, forrespondent. Catherine Ann Burkly, Schuylerville, attorney for the children. Michael S. Martin, Glens Falls, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of Washington County (Pritzker, J.),entered May 5, 2011, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 10, to adjudicate the subject children to be neglected.
Respondent is the father of Trinity CC. (born in 2007) and the uncle of Tavious CC. andTavianna CC. (born in 1998 and 2000, respectively).[FN1]On the afternoon of September 17, 2009, [*2]and while in thepresence of all three children, respondent became embroiled in a domestic dispute with Trinity'smother. Later that evening, various law enforcement officials were dispatched to respondent'sresidence in the Town of Argyle, Washington County to make an arrest. Following a briefstandoff, during which time Tavious and Tavianna were asleep inside the residence, respondentwas taken into custody and charged with endangering the welfare of a child and harassment inthe second degree. Respondent was arraigned and released, and a no-contact order of protection,which respondent violated the following morning, was entered in favor of Trinity and her mother.
Based upon events that unfolded during the course of his arrest for the domestic dispute,respondent was indicted and charged in October 2009 with, insofar as is relevant here, criminalpossession of a weapon in the second degree, two counts of criminal possession of a weapon inthe third degree and criminal contempt in the second degree. Following a jury trial, respondentwas convicted of these charges and an aggregate prison term of six years was imposed.[FN2]
In the interim, petitioner commenced this proceeding pursuant to Family Ct Act article 10alleging that respondent neglected all three children by failing to maintain a safe and adequatehome and engaging in domestic violence. Following respondent's criminal conviction, petitionermoved for summary judgment and, after numerous adjournments, Family Court grantedpetitioner's application and adjudicated all three children to be neglected.[FN3]Respondent now appeals, contending that Family Court erred in granting petitioner's motion forsummary judgment and, further, in allowing him to proceed pro se.
We affirm. Although infrequently invoked, summary judgment nonetheless remains anappropriate procedural device to be utilized in a Family Ct Act article 10 proceeding where notriable issues of fact exist (see Matter ofJadalynn HH. [Roy HH.], 93 AD3d 1112, 1113 [2012]; Matter of Julianne XX., 13 AD3d1031, 1031-1032 [2004]). To that end, "[a] criminal conviction may be given collateralestoppel effect in a Family Court proceeding where (1) the identical issue has been resolved, and(2) the defendant in the criminal action had a full and fair opportunity to litigate the issue of hisor her criminal conduct" (Matter ofDoe, 47 AD3d 283, 285 [2007], lv denied 10 NY3d 709 [2008]; accord Matter of Ajay P. , 60 AD3d681, 683 [2009]; see Matter ofJewelisbeth JJ. [Emmanuel KK.], 97 AD3d 887, 888 [2012]).
Preliminarily, respondent does not dispute that he had a full and fair opportunity to litigatehis conduct during the course of his criminal trial and, despite his protestations to the contrary, itis readily apparent that the allegations of neglect and respondent's subsequent criminalconvictions "arose out of the same incident" (Matter of Laurali M., 248 AD2d 983[1998]; cf. Matter of Kali-Ann E.,27 AD3d 796, 798 [2006], lv denied 7 NY3d 704 [2006] [criminal convictions"involved acts that fell within the general allegations of the (neglect) [*3]petition"]).
In support of its motion for summary judgment, petitioner tendered the petition andsupporting affidavits from its caseworker, the underlying incident report, the supportingdeposition given by Trinity's mother and the resulting order of protection, as well as theindictment and sentence and commitment order. Such proof, in our view, established the requiredidentity of issue and "factual nexus between the [underlying criminal] conviction and theallegations made in the neglect petition" (Matter of Jewelisbeth JJ., 97 AD3d at 888),thereby demonstrating petitioner's entitlement to summary judgment. In opposition, respondentoffered nothing more than conclusory denials of wrongdoing and unsubstantiated assertions ofcoercion, which were insufficient to raise a question of fact. Accordingly, petitioner's motion forsummary judgment was properly granted.
Respondent's further assertion—that Family Court erred in permitting him to proceedpro se—is equally lacking in merit. To be sure, "[t]he decision to permit a party who isentitled to counsel to proceed pro se must be supported by a showing on the record of a knowing,voluntary and intelligent waiver of the right to counsel" (Matter of Anthony K., 11 AD3d 748, 749 [2004]; accord Matter of Isiah FF., 41 AD3d900, 901 [2007]). "Although it is preferable that the court's determination be made followingan appropriate colloquy with the party on the record, it may also be made upon an examination ofall the potential relevant circumstances" (Matter of Bombard v Bombard, 254 AD2d 529,530 [1998] [citation omitted], lv denied 93 NY2d 804 [1999]; see Matter of Hassig v Hassig, 34AD3d 1089, 1091 [2006]; see alsoHughes v Gallup-Hughes, 90 AD3d 1087, 1088 [2011]).
At the time that respondent elected to proceed pro se, he had been represented by counsel foralmost one year, during which time he appeared before Family Court on numerous occasions inconnection with both the neglect proceeding and the related custody matters; as such, respondentwas fully familiar with the nature of the underlying proceedings. Notably, respondent drafted andfiled a pro se motion to dismiss the neglect petition and, one day after his request to proceed prose was granted, respondent filed a cogent—albeit ultimately unsuccessful—affidavitin opposition to petitioner's motion for summary judgment. Shortly thereafter, respondentcommenced a separate negligence action against petitioner seeking $100 million in damages.Additionally, the record reflects that this neglect proceeding spanned more than 1½ years(from September 2009 to May 2011), during which time Family Court repeatedly advisedrespondent of his right to counsel (cf.Matter of James Joseph M. v Rosana R., 32 AD3d 725, 727 [2006], lv denied 7NY3d 717 [2006]) and granted respondent various adjournments (compare Matter of Deon M. [VernonB.], 68 AD3d 1740, 1741 [2009]; Matter of Kristin R.H. v Robert E.H., 48 AD3d 1278, 1279[2008]), and respondent, in turn, repeatedly reiterated his desire to represent himself.Accordingly, even though Family Court arguably could have engaged in a more expansivecolloquy prior to granting respondent's request to proceed pro se, we nonetheless are satisfied,upon due consideration of all the attendant circumstances (see Bombard v Bombard, 254AD2d at 530), that respondent's waiver of the right to counsel was knowing, intelligent andvoluntary (compare Matter of Deon M. [Vernon B.], 68 AD3d at 1741; Matter ofKristin R.H. v Robert E.H., 48 AD3d at 1279).
Peters, P.J., Lahtinen, Stein and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Tavious and Tavianna wereplaced with respondent pursuant to the Interstate Compact on the Placement of Children(see Social Services Law § 374-a) and, for purposes of this proceeding, respondentwas the person legally responsible for their care (see Family Ct Act § 1012 [g];Social Services Law § 412 [3]).
Footnote 2: Upon respondent's appeal of hiscriminal conviction, this Court affirmed.
Footnote 3: By the time of the dispositionalhearing, only Tavious remained in petitioner's custody, as Trinity was in the custody of hermother and Tavianna was in the custody of her father.