Opinion
2013-07-31
In the Matter of ANGEL L. (Anonymous), JR. Zayan L. (Anonymous), petitioner-respondent; Kaylynne H. (Anonymous), appellant; Orange County Department of Social Services, respondent-respondent.
Thomas T. Keating, Dobbs Ferry, N.Y., for appellant. David Darwin, County Attorney, Goshen, N.Y. (Peter R. Schwarz of counsel), for respondent-respondent.
Thomas T. Keating, Dobbs Ferry, N.Y., for appellant. David Darwin, County Attorney, Goshen, N.Y. (Peter R. Schwarz of counsel), for respondent-respondent.
John M. Zenir, Mineola, N.Y., attorney for the child.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.
In a guardianship proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Orange County (Klein, J.), dated January 9, 2012, which, after a hearing, granted the petition and appointed the petitioner as guardian of the person of the subject child.
ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Orange County, for a new determination as to whether the mother qualifies for assigned counsel, a new hearing on the guardianship petition, and a new determination of the petition thereafter.
In conducting the guardianship hearing in this matter, the Family Court erred in considering the income of the mother's cohabiting fiancé in making a determination as to whether she was needy and, therefore, entitled to appointment of counsel ( see generally Roulan v. County of Onondaga, 90 A.D.3d 1617, 936 N.Y.S.2d 417,mod.21 N.Y.3d 902, 966 N.Y.S.2d 744, 989 N.E.2d 6;Matter of Plovnick v. Klinger, 10 A.D.3d 84, 781 N.Y.S.2d 360). Furthermore, nothing in the record supports a finding that the mother waived her right to counsel ( see Matter of Matthews v. Matthews, 56 A.D.3d 1268, 869 N.Y.S.2d 297;Matter of Evan F., 29 A.D.3d 905, 815 N.Y.S.2d 697). Thus, the mother was deprived of her right to counsel ( seeFamily Ct. Act § 262[a][v]; Matter of Jung [ State Commn. on Jud. Conduct ], 11 N.Y.3d 365, 870 N.Y.S.2d 819, 899 N.E.2d 925;Matter of Giovanni S. [ Jasmin A. ], 89 A.D.3d 252, 931 N.Y.S.2d 676).
Accordingly, the matter must be remitted to the Family Court, Orange County, for a new determination as to whether the mother qualifies for assigned counsel, a new hearing on the guardianship petition, and a new determination of the petition thereafter.