Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Casey N.

February 17, 2009

IN THE MATTER OF CASEY N. (ANONYMOUS).
ORANGE COUNTY DEPARTMENT OF SOCIAL SERVICES, RESPONDENT;
v.
TERRY S. (ANONYMOUS), ET AL., APPELLANTS. (PROCEEDING NO. 1)
IN THE MATTER OF KERYN D. (ANONYMOUS).
ORANGE COUNTY DEPARTMENT OF SOCIAL SERVICES, RESPONDENT;
v.
TERRY S. (ANONYMOUS), ET AL., APPELLANTS. (PROCEEDING NO. 2)
IN THE MATTER OF TYLER S. (ANONYMOUS).
ORANGE COUNTY DEPARTMENT OF SOCIAL SERVICES, RESPONDENT;
v.
TERRY S. (ANONYMOUS), ET AL., APPELLANTS. (PROCEEDING NO. 3)



In three related child neglect proceedings pursuant to Family Court Act article 10, the father appeals from (1) a fact-finding order of the Family Court, Orange County (Currier Woods, J.), dated July 9, 2007, and (2) an order of disposition of the same court dated September 5, 2007, which, after a hearing, inter alia, adjudicated that he neglected the children and placed his home under the supervision of the Orange County Department of Social Services for a period of one year, and the mother separately appeals from (1) a fact-finding order of the same court dated July 9, 2007, and (2) an order of disposition of the same court dated September 5, 2007, which, after a hearing, inter alia, adjudicated that she neglected the children and placed her home under the supervision of the Orange County Department of Social Services for a period of one year.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

WILLIAM F. MASTRO, J.P., HOWARD MILLER, EDWARD D. CARNI and WILLIAM E. McCARTHY, JJ.

(Docket Nos. N-167-07, N-168-07, N-169-07)

DECISION & ORDER

ORDERED that the appeals from the fact-finding orders are dismissed, without costs or disbursements, as the fact-finding orders were superseded by the orders of disposition; and it is further,

ORDERED that the appeals from so much of the orders of disposition dated September 5, 2007, as 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 are dismissed as academic, without costs or disbursements, as those portions of the orders expired by their own terms; and it is further,

ORDERED that the order of disposition dated September 5, 2007, relating to the father, is modified, on the law, by deleting the provisions thereof adudicating that the father neglected the children Casey N. and Keryn D.; as so modified, the order of disposition dated September 5, 2007, relating to the father, is affirmed insofar as reviewed, without costs or disbursements, and the fact-finding order dated July 9, 2007, relating to the father is modified accordingly; and it is further,

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). 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. Amend. 6; NY Const. Art. 1, § 6; Family Ct Act § 262[a][i]; Matter of Jung (State Commn. On Jud. Conduct), 11 NY3d 365; Matter of Ella B., 30 NY2d 352, 356-357). A party, however, may waive the right to counsel and opt for self-representation (see People v Arroyo, 98 NY2d 101, 103; People v Smith, 92 NY2d 516, 520; Matter of Jetter v Jetter, 43 AD3d 821, 822). 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). 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). 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; see Matter of Evan F., 29 AD3d 905, 907; see also Faretta v California, 422 US 806, 835). 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; 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:

THE COURT: Do you wish Mr. [Gary] Eisenberg to represent you, ma'am?

[Lisa S.]: I don't believe he's representing my interests, but I don't think I ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.