Matter of Casey N.
| Decision Date | 17 February 2009 |
| Docket Number | 2008-08688.,2007-09551.,2008-08687.,2007-09553. |
| Citation | 2009 NY Slip Op 01223,59 A.D.3d 625,873 N.Y.S.2d 343 |
| Parties | In the Matter of CASEY N., an Infant. ORANGE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; TERRY S. et al., Appellants. (Proceeding No. 1.) In the Matter of KERYN D., an Infant. ORANGE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; TERRY S. et al., Appellants. (Proceeding No. 2.) In the Matter of TYLER S., an Infant. ORANGE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; TERRY S. et al., Appellants. (Proceeding No. 3.) |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order of disposition dated September 5, 2007, relating to the mother, is reversed insofar as reviewed, on the law, without costs or disbursements, the fact-finding order dated July 9, 2007, relating to the mother, is modified accordingly, and the matter is remitted to the Family Court, Orange County, for a new hearing and determination in accordance herewith.
The appeals from those portions of the orders of disposition dated September 5, 2007, which placed the homes of the father and the mother under the supervision of the Orange County Department of Social Services for a period of one year must be dismissed as academic because those portions of the orders expired by their own terms (see Matter of Regina P., 19 AD3d 698, 699 [2005]). However, the adjudication of neglect constitutes a permanent and significant stigma which might indirectly affect the appellants' status in any future proceedings. Therefore, the appeals from so much of the orders of disposition dated September 5, 2007, as adjudicated that the father and the mother neglected the children are not academic (see Matter of Regina P., 19 AD3d at 699).
A party in a proceeding pursuant to Family Court Act article 10 has both a constitutional right and a statutory right to be represented by counsel (see US Const 6th Amend; NY Const, art 1, § 6; Family Ct Act § 262 [a] [i]; Matter of Jung [State Commn. on Jud. Conduct], 11 NY3d 365 [2008]; Matter of Ella B., 30 NY2d 352, 356-357 [1972]). A party, however, may waive the right to counsel and opt for self-representation (see People v Arroyo, 98 NY2d 101, 103 [2002]; People v Smith, 92 NY2d 516, 520 [1998]; Matter of Jetter v Jetter, 43 AD3d 821, 822 [2007]). Before permitting a party to proceed pro se, the court must determine that the party's decision to do so is made knowingly, intelligently, and voluntarily (see People v Smith, 92 NY2d 516, 520 [1998]). To ascertain whether a party's waiver of the right to counsel meets these requirements, the court must conduct a "searching inquiry" of that party (People v Arroyo, 98 NY2d at 103; see People v Slaughter, 78 NY2d 485, 491 [1991]). While there is no "rigid formula" to the court's inquiry, there must be a showing that the party "was aware of the dangers and disadvantages of proceeding without counsel" (People v Providence, 2 NY3d 579, 582 [2004]; see Matter of Evan F., 29 AD3d 905, 907 [2006]; see also Faretta v California, 422 US 806, 835 [1975]). For example, the court may inquire about the litigant's "age education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver" (People v Smith, 92 NY2d at 520). "Denial of the right of self-representation is not subject to harmless error analysis" (People v LaValle, 3 NY3d 88, 106 [2004]; see Matter of Evan F., 29 AD3d at 906).
Here, the Family Court failed to sufficiently advise the mother of the risks of self-representation. The entirety of the colloquy on this issue was as follows:
As the above illustrates, the only inquiry the Family Court conducted was to ask the mother twice whether she wanted Eisenberg to represent her. Otherwise, it made only one declaratory statement to the mother that generally cautioned her against self-representation, without detailing the dangers and disadvantages of doing so, and informed her that she would have to follow the same legal rules as the other parties. As such, the Family Court failed to conduct a sufficiently searching inquiry of the mother to be reasonably certain that she understood the dangers and disadvantages of...
To continue reading
Request your trial
-
In the Matter of Giovanni S. (anonymous).Admin. For Children's Serv.
...at 373, 870 N.Y.S.2d 819, 899 N.E.2d 925; Matter of Ella B., 30 N.Y.2d at 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), including on appeal ( see Family Ct. Act § 1120[a]; see also Family Ct. Act § 1121[4], [5] ). The importance of the......
-
People v. Bristol
...78 N.Y.2d 485, 491–492, 577 N.Y.S.2d 206, 583 N.E.2d 919;People v. Rafikian, 98 A.D.3d at 1140, 951 N.Y.S.2d 226;Matter of Casey N., 59 A.D.3d 625, 629, 873 N.Y.S.2d 343). Accordingly, since the court failed to ensure that the defendant's waiver of his right to counsel was made knowingly, i......
-
Graham v. Rawley
...and opt for self-representation, provided that he or she does so knowingly, intelligently, and voluntarily (see Matter of Casey N., 59 A.D.3d 625, 627, 873 N.Y.S.2d 343 ; Matter of Knight v. Knight, 59 A.D.3d 445, 446, 873 N.Y.S.2d 324 ). “In order to determine whether a party is validly wa......
-
Massey v. Van Wyen
...101, 103, 745 N.Y.S.2d 796, 772 N.E.2d 1154;People v. Smith, 92 N.Y.2d 516, 520, 683 N.Y.S.2d 164, 705 N.E.2d 1205;Matter of Casey N., 59 A.D.3d 625, 627, 873 N.Y.S.2d 343). Before permitting a party to proceed pro se, the court must determine that the party's decision to do so is made know......