Osorio v. Osorio

• Decision Date: 28 September 2016
• Citation: 38 N.Y.S.3d 241,142 A.D.3d 1177,2016 N.Y. Slip Op. 06219
• Parties: In the Matter of Kristina OSORIO, respondent, v. Carla M. OSORIO, appellant. (Proceeding No. 1) In the Matter of Dawn Osorio, respondent, v. Carla M. Osorio, appellant. (Proceeding No. 2).
• Court: New York Supreme Court — Appellate Division

142 A.D.3d 1177

38 N.Y.S.3d 241

2016 N.Y. Slip Op. 06219

In the Matter of Kristina OSORIO, respondent,

v.Carla M. OSORIO, appellant. (Proceeding No. 1)

In the Matter of Dawn Osorio, respondent,

v.Carla M. Osorio, appellant. (Proceeding No. 2).

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

Sept. 28, 2016.

Carla M. Osorio, Brooklyn, NY, appellant pro se.

RUTH C. BALKIN, J.P. LEONARD B. AUSTIN, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.

Appeals by Carla M. Osorio from two orders of protection of the Family Court, Queens County (Dennis Lebwohl, J.), both dated November 6, 2015. The orders of protection, after a hearing, directed Carla M. Osorio, inter alia, to stay away from Kristina Osorio and Dawn Osorio respectively, until and including November 5, 2017.

ORDERED that the orders of protection are reversed, on the law, without costs or disbursements, and the matters are remitted to the Family Court, Queens County, for a new hearing and determinations on the petitions with all convenient speed, in accordance herewith. Pending the new determinations, the orders of protection shall remain in effect as temporary orders of protection.

A party in a proceeding pursuant to Family Court Act article 8 has the right to be represented by counsel (see Family Ct. Act. § 262[a][ii] ; Matter of McGregor v. Bacchus, 54 A.D.3d 678, 863 N.Y.S.2d 260 ), but may waive that right provided that he or she does so knowingly, voluntarily, and intelligently (see Matter of Tumminello v. Tumminello, 82 A.D.3d 992, 993, 918 N.Y.S.2d 735 ; Matter of Spencer v. Spencer, 77 A.D.3d 761, 908 N.Y.S.2d 597 ; Matter of McGregor v. Bacchus, 54 A.D.3d at 678–679, 863 N.Y.S.2d 260 ). In order to determine whether a party is validly waiving the statutory right to counsel, the Family Court must conduct a “searching inquiry” to ensure that the waiver is knowing, voluntary, and intelligent (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 [internal quotation marks omitted]; see Matter of Rosof v. Mallory, 88 A.D.3d 802, 930 N.Y.S.2d 901 ; Matter of Spencer v. Spencer, 77 A.D.3d at 761, 908 N.Y.S.2d 597 ; Matter of McGregor v. Bacchus, 54 A.D.3d at 679, 863 N.Y.S.2d 260 ; see also Matter of Melissa H. v. Shameer S., 100 A.D.3d 535, 955 N.Y.S.2d 3 ). A waiver is valid where the party was aware of the dangers and disadvantages of proceeding without counsel (see Matter of Rosof v. Mallory, 88 A.D.3d at 802, 930 N.Y.S.2d 901 ; Matter of McGregor v. Bacchus, 54 A.D.3d at 679, 863 N.Y.S.2d 260 ). The deprivation of a party's right to counsel guaranteed by Family Court Act § 262 requires reversal, without regard to the merits of the unrepresented party's position (see Matter of Savoca v. Bellofatto, 104 A.D.3d 695, 960 N.Y.S.2d 212 ; Matter of Belmonte v. Batista, 102 A.D.3d 682, 683, 961 N.Y.S.2d 174 ; Matter of Collier v. Norman, 69 A.D.3d 936, 937, 892 N.Y.S.2d 793 ).

Here, the record supports the appellant's contention that she was not advised of her right to counsel in accordance with Family Court Act § 262(a). Further, there is no indication on the record that she waived her right to counsel. Under these circumstances, the appellant was deprived of her statutory right to counsel (see Matter of Dolson v. Mitts, 99 A.D.3d 1079, 1080, 951 N.Y.S.2d 920 ; Matter of Broome County Dept. of Social Servs. v. Basa, 56 A.D.3d 1092, 1093–1094, 869 N.Y.S.2d 636 ; Matter of McGregor v. Bacchus, 54 A.D.3d at 679, 863 N.Y.S.2d 260 ; Matter of Jetter v. Jetter, 43 A.D.3d 821, 822, 844 N.Y.S.2d 322 ; Matter of Evan F., 29 A.D.3d 905, 907, 815 N.Y.S.2d 697 ).

Accordingly, the orders of protection must be reversed, and the matters remitted to the Family Court, Queens...