Admin. for Children's Servs. v. Sonia R. (In re Alexandra R.-M.)

179 A.D.3d 809

116 N.Y.S.3d 349

In the MATTER OF ALEXANDRA R.-M. (Anonymous).

Administration for Children's Services, Respondent;

v.Sonia R. (Anonymous), Appellant.

2018–14393

Docket No. N–16287–16

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

Submitted—November 18, 2019

January 15, 2020

Yasmin Daley Duncan, Brooklyn, N.Y., for appellant.

James E. Johnson, Corporation Counsel, New York, N.Y. (Claude S. Platton and Cynthia Kao of counsel), for respondent.

Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and John A. Newbery ), attorney for the child.

MARK C. DILLON, J.P., SHERI S. ROMAN, HECTOR D. LASALLE, PAUL WOOTEN, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 10, the mother appeals from an order of disposition of the Family Court, Queens County (Carol Ann Stokinger, J.), dated October 19, 2018. The order of disposition, upon an order of fact-finding of the same court (Mildred T. Negron, J.) dated May 9, 2018, after fact-finding and dispositional hearings, inter alia, found that the mother neglected the subject child.

ORDERED that the order of disposition is reversed, on the law, without costs or disbursements, the order of fact-finding is vacated, the petition is denied, and the proceeding is dismissed.

On August 22, 2016, the petitioner commenced this proceeding pursuant to Family Court Act article 10, alleging that on or about July 1, 2016, the mother neglected her then 15–year–old daughter by failing to provide the child with proper supervision or guardianship. After fact-finding and dispositional hearings, the Family Court found that the mother neglected the child by her "continuous, relentless belittling and degrading of the child and by striking the child." The mother appeals from the order of disposition.

As a threshold matter, we reject the mother's contention that she was deprived of her right to counsel at the fact-finding hearing. "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" ( Matter of Casey N., 59 A.D.3d 625, 627, 873 N.Y.S.2d 343 ). "A party, however, may waive the right to counsel and opt for self-representation, provided that he or she does so knowingly, intelligently, and voluntarily" ( Matter of Graham v. Rawley, 140 A.D.3d 765, 767, 33 N.Y.S.3d 371 ). In determining whether a waiver meets this requirement, the court must conduct a searching inquiry (see People v. Slaughter, 78 N.Y.2d 485, 491, 577 N.Y.S.2d 206, 583 N.E.2d 919 ) and impress upon the party the dangers and disadvantages of giving up the right to counsel (see Matter of Kathleen K. [Steven K.], 17 N.Y.3d 380, 386, 929 N.Y.S.2d 535, 953 N.E.2d 773 ). Here, based upon our review of the record, the Family Court conducted a sufficiently searching inquiry to ensure that the mother's waiver of her right to counsel and her election to represent herself, with the assistance of a legal advisor, was knowingly, voluntarily, and intelligently made (see Matter of Graham v. Rawley, 140 A.D.3d at 767, 33 N.Y.S.3d 371 ).

To establish neglect, a petitioner must demonstrate by a preponderance of the evidence, "first, that [the] child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent ... to exercise a minimum degree of care in providing the child with proper supervision or guardianship" ( Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840 ; see Family Ct. Act § 1012[f][i][B] ). "Actual or imminent danger of impairment is a ‘prerequisite to a finding of neglect [which] ensures that the Family Court, in deciding whether to authorize state intervention, will focus on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior’ " ( Matter of Zahir W. [Ebony W.], 169 A.D.3d 909, 909–910, 94 N.Y.S.3d 329, quoting Nicholson v. Scoppetta, 3 N.Y.3d at 369, 787 N.Y.S.2d 196, 820 N.E.2d 840 ).

Here, the Family Court's finding of neglect is not supported by a...