Opinion
03-15-2024
In the Matter of Souad BRACKEN, Petitioner-Respondent-Appellant, v. Eric K. BRACKEN, Respondent-Petitioner-Respondent.
KAMAN BERLOVE LLP, ROCHESTER (GARY MULDOON OF COUNSEL), FOR PETITIONER-RESPONDENT-APPELLANT. SARAH S. HOLT, CONFLICT DEFENDER, ROCHESTER (FABIENNE N. SANTACROCE OF COUNSEL), FOR RESPONDENT-PETITIONER-RESPONDENT. ANDREW G. MORABITO, EAST ROCHESTER, ATTORNEY FOR THE CHILD.
Appeal from an order of the Family Court, Monroe County (Fatimat O. Reid, J.), entered January 25, 2022, in a proceeding pursuant to Family Court Act article 6. The order, inter alia, awarded sole custody of the subject child to respondent-petitioner.
KAMAN BERLOVE LLP, ROCHESTER (GARY MULDOON OF COUNSEL), FOR PETITIONER-RESPONDENT-APPELLANT.
SARAH S. HOLT, CONFLICT DEFENDER, ROCHESTER (FABIENNE N. SANTACROCE OF COUNSEL), FOR RESPONDENT-PETITIONER-RESPONDENT.
ANDREW G. MORABITO, EAST ROCHESTER, ATTORNEY FOR THE CHILD. PRESENT: SMITH, J.P., CURRAN, BANNISTER, GREENWOOD, AND NOWAK, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 6, petitioner-respondent mother appeals from an order that, inter alia, modified a prior custody order by awarding respondent-petitioner father sole custody of the subject child. We affirm.
[1–3] Contrary to the mother’s contention, Family Court did not err in refusing to appoint new counsel for her after she released her assigned counsel after two days of the fact-finding hearing, which was held on three days over the course of four months. It is well settled that "[a]n indigent party’s right to court-appointed counsel under the Family Court Act is not absolute" (Matter of Petkovsek v. Snyder, 251 A.D.2d 1086, 1086, 674 N.Y.S.2d 208 [4th Dept. 1998]; see Matter of Anthony J.A. [Jason A.A.], 180 A.D.3d 1376, 1378, 119 N.Y.S.3d 352 [4th Dept. 2020], lv denied 35 N.Y.3d 902, 2020 WL 2202991 [2020]). "In order to have substitute counsel appointed, a party must establish that good cause for release existed necessitating dismissal of assigned counsel" (Matter of Mooney v. Mooney, 243 A.D.2d 840, 841, 663 N.Y.S.2d 676 [3d Dept. 1997]; see Matter of Destiny V. [Mark V.], 107 A.D.3d 1468, 1469, 965 N.Y.S.2d 904 [4th Dept. 2013]). Here, the mother did not demonstrate that good cause existed for substitution of assigned counsel (see Matter of Carter H. [Seth H.], 191 A.D.3d 1359, 1360-1361, 140 N.Y.S.3d 658 [4th Dept. 2021]; Anthony J.A., 180 A.D.3d at 1378, 119 N.Y.S.3d 352; Matter of Biskupski v. McClellan, 278 A.D.2d 912, 912, 718 N.Y.S.2d 772 [4th Dept. 2000]). Rather, the record shows that there was just a disagreement between the mother and her counsel over trial strategy and the mother’s filing of pro se violation petitions (see generally People v. Linares, 2 N.Y.3d 507, 511, 780 N.Y.S.2d 529, 813 N.E.2d 609 [2004]). Contrary to the mother’s further contention, the court advised her of the dangers of self-representation and conducted a searching inquiry to ensure that the mother’s waiver of the right to counsel was knowing, intelligent, and voluntary (see Matter of DiNunzio v. Zylinski, 175 A.D.3d 1079, 1082-1083, 108 N.Y.S.3d 634 [4th Dept. 2019]; Matter of Anthony K., 11 A.D.3d 748, 749-750, 783 N.Y.S.2d 418 [3d Dept. 2004]).
[4] We reject the mother’s contention that the court abused its discretion in denying her request for an adjournment on the third day of the fact-finding hearing (see Petkovsek, 251 A.D.2d at 1086, 674 N.Y.S.2d 208; see generally Matter of Steven B., 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646 [2006]). The mother’s request "resulted from her lack of due diligence in preparing for the hearing" (Steven B., 6 N.Y.3d at 889, 817 N.Y.S.2d 599, 850 N.E.2d 646; see Matter of Latonia W. [Anthony W.], 144 A.D.3d 1692, 1692-1693, 41 N.Y.S.3d 643 [4th Dept. 2016], lv denied 28 N.Y.3d 914, 2017 WL 582524 [2017]; Matter of Sophia M.G.-K. [Tracy G.-K.], 84 A.D.3d 1746, 1747, 922 N.Y.S.2d 907 [4th Dept. 2011]).
[5] The contention of the Attorney for the Child (AFC) that the court improperly exercised its discretion in granting the father sole custody is not properly before us inasmuch as the AFC did not file a notice of appeal (see Matter of Wojciulewicz v. McCauley, 166 A.D.3d 1489, 1492, 87 N.Y.S.3d 422 [4th Dept. 2018], lv denied 32 N.Y.3d 918, 2019 WL 1285119 [2019]; Mat- ter of Noble v. Gigon, 165 A.D.3d 1640, 1641, 82 N.Y.S.3d 923 [4th Dept. 2018], lv denied 33 N.Y.3d 902, 2019 WL 1941819 [2019]; Matter of Carroll v. Chugg, 141 A.D.3d 1106, 1106, 34 N.Y.S.3d 848 [4th Dept. 2016]).