In re Sarah J.A.

• Decision Date: 13 December 2017
• Docket Number: 2016–13108,2016–13109,Docket No. B–610–14
• Citation: 156 A.D.3d 691,66 N.Y.S.3d 668
• Parties: In the MATTER OF SARAH J.A. (Anonymous). Putnam County Department of Social Services, respondent; Ramadan G. O.–A. (Anonymous), appellant.
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 691

66 N.Y.S.3d 668

In the MATTER OF SARAH J.A. (Anonymous). Putnam County Department of Social Services, respondent; Ramadan G. O.–A. (Anonymous), appellant.

2016–13108

2016–13109

Docket No. B–610–14

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

Submitted November 9, 2017

December 13, 2017

Salvatore C. Adamo, New York, NY, for appellant.

Faye Thorpe, Carmel, NY, for respondent.

Arlene Gold Wexler, Mamaroneck, NY, attorney for the child.

MARK C. DILLON, J.P., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeals from (1) an order of fact-finding of the Family Court, Putnam County (James F. Reitz, J.), entered March 28, 2016, and (2) an order of disposition of that court entered October 28, 2016. The order of fact-finding, after a hearing, found that the father permanently neglected the subject child. The order of disposition, after a dispositional hearing, terminated the father's parental rights and freed the child for adoption.

ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as the order of fact-finding was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further,

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

On July 9, 2014, the petitioner filed a petition pursuant to Social Services Law § 384–b to terminate the father's parental rights to the subject child on the ground of permanent neglect. After a fact-finding hearing, the Family Court found that the father had permanently neglected the child. After a dispositional hearing, the court terminated the father's parental rights and freed the child for adoption. The father appeals.

A parent in a proceeding pursuant to Social Services Law § 384–b to terminate parental rights has the right to the assistance of counsel (see Family Ct Act § 262[a][iv] ). A parent, however, may waive the right to counsel and opt for self-representation (see People v. Arroyo, 98 N.Y.2d 101, 103, 745 N.Y.S.2d 796, 772 N.E.2d 1154 ; Matter of Graham v. Rawley, 140 A.D.3d 765, 767, 33 N.Y.S.3d 371 ; Matter of Massey v. Van Wyen, 108 A.D.3d 549, 550, 969 N.Y.S.2d 464 ). However, the right to self-representation is "not ... unfettered" ( Matter of Kathleen K.[Steven K.], 17 N.Y.3d 380, 385, 929 N.Y.S.2d 535, 953 N.E.2d 773 ). In order to invoke the right to defend pro se, "(1) the request [must be] unequivocal and timely asserted, (2) there [must be] a knowing and intelligent waiver of the right to counsel, and (3) the defendant [must not have] engaged in conduct which would prevent the fair and orderly exposition of the issues" ( People v. McIntyre, 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 ; see Matter of Kathleen K.[Steven K.], 17 N.Y.3d at 385, 929 N.Y.S.2d 535, 953 N.E.2d 773 ). "An application is ‘timely interposed when it is asserted before the trial commences' " ( Matter of Kathleen K.[Steven K.], 17 N.Y.3d at 387, 929 N.Y.S.2d 535, 953 N.E.2d 773, quoting People v. McIntyre, 36 N.Y.2d at 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 ; see People v. Jenkins, 45 A.D.3d 864, 865, 846 N.Y.S.2d 347 ). "If the request is made thereafter, the ‘right is severely constricted’ and the trial court must exercise its sound discretion and grant the request only under compelling circumstances" ( Matter of Kathleen K.[Steven K.], 17 N.Y.3d at 387, 929 N.Y.S.2d 535, 953 N.E.2d 773, quoting People v. McIntyre, 36 N.Y.2d at 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 ).

Here, the Family Court providently exercised its discretion in denying the father's request to represent himself since it was untimely, and the father proferred no compelling circumstances to justify the need to grant the application (see Matter of Kathleen K. [Steven K.], 17 N.Y.3d at 387, 929 N.Y.S.2d 535, 953 N.E.2d 773 ; People v. McIntyre, 36 N.Y.2d at 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 ; People v. Jenkins, 45 A.D.3d at 865, 846 N.Y.S.2d 347 ).

Contrary to the father's contention, the petitioner established, by clear and convincing evidence, that it made diligent efforts to encourage and strengthen his relationship with the child, which efforts were specifically tailored to the father's individual situation (see Social Services Law § 384–b[7][a] ; Matter of Hailey ZZ. [Ricky ZZ.], 19 N.Y.3d 422, 430, 948 N.Y.S.2d 846, 972 N.E.2d 87 ; Matter of Shaquan D.M. [Shaquanna M.], 150 A.D.3d 1119, 1119–1120, 52 N.Y.S.3d 660 ; Matter of Fatoumata D. [Sokona D.], 100 A.D.3d 464, 465, 954 N.Y.S.2d 31 ). These efforts included, inter alia, providing case work counseling, making referrals for mental health therapy, psychological evaluations, parenting programs, and anger management programs, attempting to follow up with those programs, encouraging compliance with the programs, and facilitating supervised visitation (see Social Services Law § 384–b[7][f] ; Matter of Melisha M.H. [Sheila B.R.], 119 A.D.3d 788, 788, 989 N.Y.S.2d 312 ; Matter of Elasia A.D.B. [Crystal D.G.], 118 A.D.3d 778, 779, 987 N.Y.S.2d 188 ; Matter of Darryl A.H. [Olga Z.], 109 A.D.3d 824, 824, 971 N.Y.S.2d 134 ). Despite these efforts, the father failed to plan for the child's future. During the relevant time period, the father failed to gain insight into his previous behavior and failed to address and overcome the specific personal and familial problems which endangered the child, and which could endanger the child in the future (see Matter of Tammy B., 185 A.D.2d 881, 882, 587 N.Y.S.2d 377 ). The father's partial compliance with the service plan was insufficient to preclude a finding of permanent neglect (see Matter of Elasia A.D.B. [Crystal D.G.], 118 A.D.3d at 779, 987 N.Y.S.2d 188 ; Matter of Tarmara F.J. [Jaineen J.], 108 A.D.3d 543, 544, 969 N.Y.S.2d 119 ; ...