Admin. for Children's Servs. v. Kassia D. (In re Cecile D.)

• Decision Date: 09 December 2020
• Docket Number: 2018–10340,Docket Nos. N–3191–15, N–3192–15
• Parties: In the MATTER OF CECILE D. (Anonymous). Administration for Children's Services, respondent; v. Kassia D. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Fatoumata D. (Anonymous). Administration for Children's Services, respondent; v. Kassia D. (Anonymous), appellant. (Proceeding No. 2)
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 1036

136 N.Y.S.3d 162

In the MATTER OF CECILE D. (Anonymous).

Administration for Children's Services, respondent;

v.Kassia D. (Anonymous), appellant. (Proceeding No. 1)

In the Matter of Fatoumata D. (Anonymous).

Administration for Children's Services, respondent;

v.Kassia D. (Anonymous), appellant. (Proceeding No. 2)

2018–10340

Docket Nos. N–3191–15, N–3192–15

Supreme Court, Appellate Division, Second Department, New York.

Submitted - October 26, 2020

December 9, 2020

Joseph H. Nivin, Forest Hills, NY, for appellant.

James E. Johnson, Corporation Counsel, New York, N.Y. (Claude S. Platton and Aaron M. Bloom of counsel), for respondent.

Linda C. Braunsberg, Staten Island, NY, attorney for the child Cecile D.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 10, the mother appeals from an order of disposition of the Family Court, Kings County (Elizabeth Barnett, J.), dated July 31, 2018. The order of disposition, insofar as appealed from, upon an order of fact-finding of the same court (Barbara Salinitro, J.) dated January 19, 2017, made after a fact-finding hearing, finding that the mother neglected the subject children, upon an order of the same court (Barbara Salinitro, J.) dated March 1, 2017, denying the mother's motion, inter alia, to vacate the order of fact-finding and reopen the fact-finding hearing, and after a dispositional hearing, released the older child to the custody of the nonrespondent grandmother and placed the younger child in the custody of the nonrespondent grandmother.

ORDERED that the appeal from so much of the order of disposition as placed the younger child in the custody of the nonrespondent grandmother is dismissed as academic, without costs or disbursements; and it is further,

ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.

The petitioner commenced these proceedings pursuant to Family Court Act article 10, alleging that the mother neglected her older child by inflicting excessive corporal punishment upon her, and that the mother derivatively neglected her younger child. Thereafter, the petitioner amended the petitions to add an allegation that the mother had neglected both children by failing to take appropriate measures to address her mental health issues. After fact-finding and dispositional hearings, the Family Court, inter alia, determined that the mother neglected the children as alleged in the petitions, released the older child to the custody of the grandmother, and placed the younger child in the custody of the grandmother. The mother appeals.

As an initial matter, the appeal from so much of the order of disposition as placed the younger child in the grandmother's custody must be dismissed as academic as it was superseded by a subsequent permanency order from which the mother has not appealed (see Matter of Denise V.E.J. [Latonia J.], 163 A.D.3d 667, 669, 82 N.Y.S.3d 140 ). The appeal from the order of disposition, insofar as it brings up for review the finding that the mother neglected the subject children, is not academic, since the adjudication of neglect constitutes a permanent and significant stigma, which might indirectly affect the mother's status in future proceedings (see Matter of Agam B. [Janna W.], 143 A.D.3d 702, 703, 38 N.Y.S.3d 591 ).

Contrary to the mother's contention, the record demonstrates that her waiver of her right to counsel was knowingly, voluntarily, and intelligently made. "A respondent in any proceeding under article 10 of the Family Court Act has both a constitutional and a statutory right to the assistance of counsel" ( Matter of Alivia F. [John F.], 167 A.D.3d 880, 881, 89 N.Y.S.3d 714 ; see U.S. Const. Amend. VI ; N.Y. 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 ). A respondent 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 ). "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" ( Matter of Stephen Daniel A. v. Sandra M., 87 A.D.3d 735, 736, 930 N.Y.S.2d 14 ; 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 respondent's waiver is made knowingly, voluntarily, and intelligently, the trial court is obligated to conduct a " ‘searching inquiry’ " ( People v. Arroyo, 98 N.Y.2d at 103, 745 N.Y.S.2d 796, 772 N.E.2d 1154, quoting People v. Slaughter, 78 N.Y.2d 485, 491, 577 N.Y.S.2d 206, 583 N.E.2d 919 ; see Matter of Kathleen K. [Steven K.], 17 N.Y.3d 380, 385, 929 N.Y.S.2d 535, 953 N.E.2d 773 ; Matter of Alivia F. [John F.], 167 A.D.3d at 881, 89 N.Y.S.3d 714 ). "A waiver is voluntarily made when the trial court advises the [respondent] and can be certain that the dangers and disadvantages of giving up the fundamental right to counsel have been impressed upon the [respondent]" ( Matter of Kathleen K. [Steven K.], 17 N.Y.3d 380, 385–386, 929 N.Y.S.2d 535, 953 N.E.2d 773 [internal quotation marks omitted]; see Matter of Stephen Daniel A. v. Sandra M., 87 A.D.3d at 736, 930 N.Y.S.2d 14 ; Matter of Jetter v. Jetter, 43 A.D.3d 821, 822, 844 N.Y.S.2d 322 ).

Here, the Family Court explained the dangers and disadvantages of proceeding without counsel and the mother clearly, unequivocally, and repeatedly acknowledged that she understood the right she was waiving and expressed that she wished to proceed without counsel. Accordingly, the record demonstrates that the court conducted a sufficiently searching inquiry to ensure that the mother's waiver of her right to counsel was knowingly, voluntarily, and intelligently made (see Matter of Saunders v. Scott, 172 A.D.3d 724, 725, 100 N.Y.S.3d 40 ; Matter of Pitkanen v. Huscher, 167 A.D.3d 901, 902, 90 N.Y.S.3d 249 ).

The mother's challenge to the finding that she neglected the children is without merit. "At a fact-finding hearing in a neglect proceeding pursuant to Family Court Act article 10, a petitioner has the burden of proving by a preponderance of the evidence that the subject child was neglected" ( Matter of Negus T. [Fayme B.], 123 A.D.3d 836, 836, 996 N.Y.S.2d 544 ; see Family Ct. Act § 1046[b][i] ; Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840 ). "In order to establish neglect of a child, the petitioner must demonstrate, by a preponderance of the evidence, (1) that the child's physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired, and (2) that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship" ( Matter of Era O. [Emmanuel O.], 145 A.D.3d 895, 897, 43 N.Y.S.3d 475 ; see Family Ct. Act §§ 1012[f][i] ; 1046[b] ).

"Although parents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child's welfare, the use of excessive corporal punishment constitutes neglect" ( Matter of Cheryale B. [Michelle B.], 121 A.D.3d 976, 977, 995 N.Y.S.2d 135 ; see Matter of Laequise P. [Brian C.], 119 A.D.3d 801, 802, 989 N.Y.S.2d 292 ). Even "a single incident of excessive corporal punishment is sufficient to support a finding of neglect" ( Matter of Eliora B. [Kennedy B.], 146 A.D.3d 772, 773, 45 N.Y.S.3d 144 ).

"In a child protective proceeding, unsworn out-of-court statements of the subject child may be received and, if properly corroborated, will support a finding of abuse or neglect" ( Matter of Paul M. [Tina H.], 146 A.D.3d 961, 962, 48 N.Y.S.3d 679 ; see Matter of Nicole V., 71 N.Y.2d 112, 117–118, 524 N.Y.S.2d 19, 518 N.E.2d 914 ). "Corroboration means any other evidence tending to support the reliability of the previous statements" ( Matter of Maya B. [Muke B.], 156 A.D.3d 784, 785, 66 N.Y.S.3d 519 [internal quotation marks omitted]; see Family Ct....