Opinion
CAF 00-01623
February 1, 2002.
Appeal from an order of Family Court, Erie County (Mix, J.), entered June 20, 2000, which, inter alia, adjudged that Samantha L. is an abused child.
GWENNOR LLOYD CARR, BUFFALO, FOR RESPONDENT-APPELLANT.
GARY J. WOJTAN, BUFFALO, FOR PETITIONER-RESPONDENT.
DAVID C. SCHOPP, LAW GUARDIAN, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO, (CHARLES D. HALVORSEN OF COUNSEL), FOR SAMANTHA L., RYAN G., AND EMILY G.
PRESENT: PINE, J.P., WISNER, HURLBUTT, KEHOE, AND BURNS, JJ.
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
In this proceeding brought pursuant to Family Court Act article 10, Family Court erred in directing respondent to proceed pro se on the first day of the fact-finding hearing, thus violating his right to counsel ( see, Family Ct Act § 261, 262 [a]; Matter of Wilson v. Bennett, 282 A.D.2d 933, 934; Matter of Meko M., 272 A.D.2d 953, 953-954; Matter of Mahoney v. Doring, 256 A.D.2d 1112, 1112-1113; Matter of Patricia L. v. Steven L., 119 A.D.2d 221, 224-226). Nevertheless, upon perceiving the error, the court assigned counsel to represent respondent and gave respondent the option of either recommencing the hearing or waiving the right to do so and instead having newly-assigned counsel review transcripts of the testimony already given. Counsel waived respondent's right to a de novo hearing based expressly on respondent's "indicated" wishes. Respondent thereby ratified the brief deprivation of counsel and waived his right to seek a new hearing. In response, the court, on consent of all parties, granted a lengthy adjournment to allow for completion of transcripts and review by counsel.
Even in the absence of respondent's valid waiver, we would conclude, under the unique circumstances of this case, that respondent was not prejudiced as a result of being directed to proceed pro se on the first day of the fact-finding hearing ( see, Matter of McNeill v. Ressel, 258 A.D.2d 64, 66-67, appeal dismissed 94 N.Y.2d 838; cf., Matter of Radjpaul v. Patton, 145 A.D.2d 494, 496-497; Matter of Patricia L. v. Steven L., supra, at 225). Nor was respondent deprived of effective assistance of counsel. Assigned counsel provided meaningful representation at the fact-finding hearing ( see, Matter of Nicholas GG., 285 A.D.2d 678, 679; Matter of Baker v. Baker, 283 A.D.2d 730, 731, lv denied 96 N.Y.2d 720; Matter of Kahira C., 269 A.D.2d 840, 841, lv denied 95 N.Y.2d 751; Matter of Sueann B., 258 A.D.2d 930, 931).