In the Matter of Lillian SS. and Another, Children Alleged to be Neglected. ULSTER COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; BRIAN SS., Appellant. (Proceeding No. 1.) In the Matter of Lillian SS. and Another, Children Alleged to be Neglected. ULSTER COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; KERI SS., Appellant. (Proceeding No. 2.)
Appellate Division of the Supreme Court of New York, Third Department
November 10, 2016
45 N.Y.S.3d 640
Respondent Brian SS. (hereinafter the father) is the biological father of Lillian SS. (born in 2010) and the stepfather of Lee TT. (born in 1997), and respondent Keri SS. is the biological mother of both children. In 1996, the father was convicted in North Carolina upon his plea of guilty of the crimes of taking indecent liberties with a child and crimes against nature after placing his penis in the mouth of his then two-year-old daughter. While on probation for those offenses, defendant was charged with raping his girlfriend‘s 18-month-old daughter and, in 1999, he entered an Alford plea to the crime of taking indecent liberties with a child. The father subsequently relocated to New York and, in March 2012, was classified as a risk level three sex offender.1
In June 2012, Family Court (Mizel, J.) granted petitioner‘s application for temрorary orders of protection prohibiting the father from having any contact with the subject children and directing the mother to comply with the terms thereof.2 That same month, petitioner separately commenced these proceedings—one against the mother, the other against the father—alleging that each parent had neglected the subject children. Following a lengthy fact-finding hearing, Family Court (McGinty, J.) adjudicated the subject children to be neglected—citing the father‘s “adamant and categorical denial of his prior sex offenses” and his corresponding failure to complete sex of
In anticipation of the ensuing dispositional hearing, petitioner proposed written terms and conditions for an order of supervision, to which the mother consented.3 The father objected to the proposed order of supervision, and Family Court proceeded to conduct a dispositional hearing in that regard. At the conclusion of the lengthy hearing that followed, Family Court, among other things, released the children to the mother‘s custody subject to various terms and conditions. Noting the father‘s рersistent denial of his sex offenses, Family Court further concluded that it would be in the children‘s best interests to suspend all visitation between the father and Lillian pending further order of the court and to limit the father‘s contact with Lee to supervised telephone access.4 The mother and the father each appeal from Family Court‘s individual dispositional orders.5
We begin with the mother‘s challenge to Family Court‘s finding that she neglected the subject children. “The case law makes clear that a child may be adjudicated to be neglected within the meaning of
As the record before us reflects, the mother steadfastly refused to believe that the father had committed the sex offenses underlying his North Carolina convictions; she accepted—without question—the father‘s initial explanations regarding those offenses and, even after learning the true nature of the father‘s 1999 conviction, failed to inquire as to the details thereof, refused to “believe that he was guilty” of any sexual offense involving a child and acknowledged that there “[p]robably [was] not” anything that would make her change her opinion on that point. Although the mother testified that, in light of the father‘s past, a decision was made that she would be a stay-at-home mom in order to provide a “safety net” for the children, she also testified that she would be “comfortable” permitting the father to have unsupervised contact with Lillian (who at the time of the fact-finding hearing was less than three years old) and had no fears about the father being left alone with the children—again insisting that he was not guilty of the crimes of which he had been convicted. As to the need for the father to undergo sex offender treatment, the mother was indifferent; the father previously had advised the mother that he had completed whatever treatment was required of him during his incarceration and the mother believed him—even though she subsequently discovered that the facility where the father had been incarсerated did not offer sex offender treatment.
Aside from the father‘s vague and self-serving testimony that he participated in what he assumed was sex offender treatment while in prison, the record is bereft of any proof that he actually completed an appropriate sex offender treatment program and, as such, there is ample support for Family Court‘s finding that the father “posed an actual dаnger to the [subject] children“—a danger or imminent threat that the mother, in turn, either refused to acknowledge or chose to ignore. Simply put, in light of the mother‘s unwillingness to appreciate the risk of harm posed by the father‘s presence in
We turn now to the father‘s claim that he was denied the right to counsel during the course of thе dispositional hearing, which commenced on April 3, 2013. On the fourth day of the hearing (Sept. 25, 2013), the father rested his case and the hearing was adjourned pending testimony from an expert retained by the attorney for the child. When the hearing reconvened on February 28, 2014, the father filed a “motion to reconsider and vacate” seeking, among other things, to compel Family Court to recuse itself from these proceedings and indicating that the legal services provided by assigned counsel, who had represented the father throughout the course of the fact-finding and dispositional hearings, “no longer [were] needed.” Upon inquiry by Family Court, the father indicated that he was requesting the appointment of new counsel or, alternatively, an adjournment to afford him sufficient time to find another attorney. Family Court denied the father‘s requests as untimely, noting that he had ample time in advance of the hearing date to seek the requested adjournment or to discharge assigned counsel and obtain another attorney. When the father refused to go forward with assigned counsel, Family Court—after cautioning the father on the perils of proceeding pro se—continued the hearing with assigned counsel serving as a legal advisor to the father. In so doing, the father now аrgues, Family Court denied him his right to counsel. We disagree.
“While a respondent in an abuse and neglect proceeding has a right to counsel, including the right to have counsel assigned if indigent, there is no right to have assigned counsel of one‘s
Here, despite having had—quite literally—months within which to request substitute counsel, the father, who already had rested his case, waited until the morning of the long-scheduled dispositional hearing—then in its fifth day—to express his dissatisfaction with assigned counsel‘s services and ask for a new attorney. The timeliness of the father‘s request aside, a review of both his written motion and his colloquy with Family Court reveals nothing more than a generalized dissatisfaction with the manner in which the proceedings were progressing. Indeed, when questioned as to his issues with assigned counsel, the father vaguely replied, “There [are] just too many problems between us.” Having failed to raise any serious concerns regarding either counsel‘s performance or the father‘s ability to effectively communicate with him, Family Court quite properly concluded that the father did not demonstrate the good cause required to warrant the substitution of assigned counsel (see Matter of Ashley JJ., 226 AD2d 783, 785 [1996]).
Having concluded that the father‘s requests for an adjournment and/or substitute counsel were properly denied, we are left to consider whether the father‘s de facto decision to proceed pro se constituted a knowing, intelligent and voluntary waiver of the right to counsel. To be sure, the father did not unequivocally express a desire to proceed pro se; he did, however, make clear that he did not wish to go forward with assigned counsel—even in an advisory capacity—and, when questioned as to his desire to proceed pro se, the father refused to answer Family Court directly,7 insisting instead that he be given time to obtain counsel of his own choоsing. The hearing proceeded as scheduled, with the father representing himself and assigned counsel acting as his legal advisor. At the conclusion of the February 2014 hearing, Family Court reminded the father to advise the court should he elect to retain counsel in advance of the next scheduled hearing date but, when the father returned to court for that hearing two months later, he continued to represent himself—with assigned counsel standing by as a legal advisor.
While Family Court arguably could hаve conducted a more detailed inquiry, the court was faced with a recalcitrant parent who steadfastly refused to accept either of the reasonable options available to him, i.e., to continue with assigned counsel or to affirmatively respond to Family Court‘s repeated inquiries as to his desire to proceed pro se, opting instead to attempt to
Of the remaining arguments raised by respondents, only two warrant discussion. As to the specific terms of the dispositional order, the father contends that Family Court abused its discretion in denying him contact with Lillian pending further order of the court. Again, we disagree. “The dispositional order must reflect a resolution consistent with the best interests of the child [ ] after consideration of all relevant facts and circumstances, and must be supported by a sound and substantial basis in the record” (Matter of Alaina E., 33 AD3d 1084, 1087 [2006] [citations omitted]). To that end, “whether visitation is appropriate is a matter left to Family Court‘s sound discretion and its findings, to which deference is to be accorded, will not be disturbed on appeal unless they lack a sound basis in the record. While denial of visitation to a biological parent must be based on compelling reasons and substantial evidence that such visitation would be detrimental or harmful to the child‘s welfare, the rights of a parent are subordinate to the policy of protecting a child from a parent who is incapable or unwilling to perform his or her parental responsibilities. Accordingly, the paramount issue in determining whether visitation should be permitted by a parent who has committed neglect is the best interests of the child [ ], and an inquiry into the child[‘s] best interests involves consideration of . . . any potential threat of future abuse or neglect” (Matter of Hobb Y., 56 AD3d 998, 999 [2008] [internal quotation marks, brackets, ellipsis and citations omitted]; see Matter of Duane FF. [Harley GG.], 135 AD3d 1093, 1094-1095 [2016], lv denied 27 NY3d 904 [2016]; Matter of Telsa Z. [Denise Z.], 90 AD3d 1193, 1194 [2011], lv denied 18 NY3d 806 [2012]).
Here, the Attorney for the Child called Rebecca Arp, a
We do, however, find merit to the mother‘s claim that a specific provision in the dispositional order—requiring her to reside in Ulster County—is invalid as no such requirement was embodied in Family Court‘s written decision. “[A] written order must conform strictly to the court‘s decision, and . . . when there is a conflict between the two, the decision controls” (Zebrowski v Zebrowski, 28 AD3d 883, 884 [2006] [internal quotation marks and citations omitted]). Here, Family Court‘s written decision following the dispositional hearing does not include any requirement that the mother and Lillian reside in Ulster County—indeed, the residency requirement was not included in the proposed terms and conditions of supervision to which the mother consented, and a review of the hearing transcript reflects that petitioner was well aware that supervision of the mother would be undertaken by an agency in the county in which the mother then was residing.9 Accordingly, Family Court‘s dispositional order entered with regard to the
mother must be modified accordingly. Rеspondents’ remaining contentions, including their respective ineffective assistance of counsel claims, have been examined and found to be lacking in merit.
Garry, J.P., Devine, Clark and Mulvey, JJ., concur. Ordered that the order entered November 6, 2014 with regard to respondent Brian SS. is affirmed, without costs. Ordered that the order entered November 6, 2014 with regard to respondent Keri SS. is modified, on the law, without costs, by reversing so much thereof as required said respondent to reside in Ulster County with the minor children; such provision is stricken from the subject order; and, as so modified, affirmed.