Opinion
2011-08-30
In the Matter of STEPHEN DANIEL A. (Anonymous).Administration for Children's Services, petitioner-respondent,Sandra M. (Anonymous), appellant, et al., respondent.
Frank A. Buono, Staten Island, N.Y., for appellant.Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Julian L. Kalkstein of counsel), for respondent.Todd D. Kadish, Brooklyn, N.Y., attorney for the child.
Frank A. Buono, Staten Island, N.Y., for appellant.Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Julian L. Kalkstein of counsel), for respondent.Todd D. Kadish, Brooklyn, N.Y., attorney for the child.
In a child protective proceeding pursuant to Family Court Act article 10, the mother appeals from so much of (1) an order of the Family Court, Queens County (Ramseur, Ct. Atty. Ref.), dated September 29, 2009, as, after a permanency hearing, approved the permanency goal of “placement for adoption” with regard to the subject child, (2) an order of the same court (Tally, J.), dated April 2, 2010, as appointed Otto M. Berk, LCSW, to “ observe and evaluate” her supervised visitations with the subject child, and (3) an order of the same court (Ramseur, Ct. Atty. Ref.), dated April 19, 2010, as, after a permanency hearing, continued the permanency goal of “placement for adoption” with regard to the subject child.
ORDERED that the orders dated September 29, 2009, and April 19, 2010, are reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Queens County, for a new permanency hearing and determination in accordance herewith; and it is further,
ORDERED that the order dated April 2, 2010, is affirmed insofar as appealed from, without costs or disbursements.
As a respondent in a proceeding pursuant to Family Court Act article 10, the mother had both a constitutional and a statutory right to the assistance of counsel ( see U.S. Const. Amend. VI; NY Const., art. I, § 6; Family Ct. Act § 262[a][i]; Matter of Jung [State Commn. on Jud. Conduct], 11 N.Y.3d 365, 373, 870 N.Y.S.2d 819, 899 N.E.2d 925; Matter of Ella B., 30 N.Y.2d 352, 356–357, 334 N.Y.S.2d 133, 285 N.E.2d 288; Matter of Casey N., 59 A.D.3d 625, 627, 873 N.Y.S.2d 343). A party may waive that right and proceed without counsel ( see People v. Arroyo, 98 N.Y.2d 101, 103, 745 N.Y.S.2d 796, 772 N.E.2d 1154; Matter of Guzzo v. Guzzo, 50 A.D.3d 687, 688, 855 N.Y.S.2d 197; Matter of Jetter v. Jetter, 43 A.D.3d 821, 822, 844 N.Y.S.2d 322). However, prior to permitting a party to proceed pro se, the court must determine that the decision to do so is made knowingly, intelligently, and voluntarily ( see People v. Arroyo, 98 N.Y.2d at 103, 745 N.Y.S.2d 796, 772 N.E.2d 1154). In determining whether a waiver meets this requirement, the court should conduct a “searching inquiry” of that party ( Matter of Kathleen K. [Steven K.], 17 N.Y.3d 380, 385, 929 N.Y.S.2d 535, 953 N.E.2d 773 [2011]; People v. Arroyo, 98 N.Y.2d at 103, 745 N.Y.S.2d 796, 772 N.E.2d 1154; People v. Slaughter, 78 N.Y.2d 485, 491, 577 N.Y.S.2d 206, 583 N.E.2d 919; Matter of Spencer v. Spencer, 77 A.D.3d 761, 761–762, 908 N.Y.S.2d 597; Matter of Casey N., 59 A.D.3d at 627, 873 N.Y.S.2d 343;
Matter of Jetter v. Jetter, 43 A.D.3d at 822, 844 N.Y.S.2d 322). “Although there is no ‘rigid formula’ as to the questions the court needs to ask for counsel waivers, there must be a showing that the party ‘was aware of the dangers and disadvantages of proceeding without counsel’ ” ( Matter of Jetter v. Jetter, 43 A.D.3d at 822, 844 N.Y.S.2d 322, quoting People v. Providence, 2 N.Y.3d 579, 582–583, 780 N.Y.S.2d 552, 813 N.E.2d 632; see Matter of Deon M. [Vernon B.], 68 A.D.3d 1740, 1741–1742, 891 N.Y.S.2d 817; Matter of Casey N., 59 A.D.3d at 627, 873 N.Y.S.2d 343).
Here, the Family Court permitted the mother to change counsel on multiple occasions, cautioned her to retain counsel, and appointed counsel to represent her. Prior to the two permanency hearings at issue, upon the mother's request, the Family Court allowed the mother to proceed pro se and directed the mother's appointed counsel to provide assistance to her in an advisory capacity. However, the Family Court failed to conduct a “ searching inquiry” of the mother in order to be reasonably certain that she understood the dangers and disadvantages of giving up the fundamental right of counsel (see Matter of Spencer v. Spencer, 77 A.D.3d at 761–762, 908 N.Y.S.2d 597; Matter of Casey N., 59 A.D.3d at 627, 873 N.Y.S.2d 343). Accordingly, because the Family Court did not ensure that the mother's waiver of her right to counsel was made knowingly, intelligently, and voluntarily, we reverse the orders dated September 29, 2009, and April 19, 2010, insofar as appealed from and remit the matter to the Family Court, Queens County, for a new permanency hearing and determination.
The mother's remaining contentions are without merit.