Angela H. v. St. Lawrence Cnty. Dep't of Soc. Servs.

180 A.D.3d 1143

120 N.Y.S.3d 481

In the Matter of ANGELA H., Appellant,

v.ST. LAWRENCE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent.

(And Another Related Proceeding.)

526043

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

Calendar Date: January 13, 2020

Decided and Entered: February 20, 2020

Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), for appellant.

St. Lawrence County Department of Social Services, Canton (David D. Willer of counsel), for respondent.

Reginald H. Bedell, Willsboro, attorney for the children.

Before: Egan Jr., J.P., Lynch, Devine, Aarons and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P.

The relevant facts and procedural history of this matter are more fully set forth in our decision on an earlier appeal ( 146 A.D.3d 1243, 45 N.Y.S.3d 691 [2017] ). There is an extensive history of litigation involving petitioner (hereinafter the mother) and two of her children (born in 2003 and 2005), dating back to when the children were initially adjudicated to have been neglected in 2004 and 2006, respectively ( Matter of Angela F. v. St. Lawrence County Dept. of Social Servs. , 146 A.D.3d at 1243, 45 N.Y.S.3d 691 ; Matter of Desirea F. [Angela F.] , 137 A.D.3d 1519, 1519, 28 N.Y.S.3d 490 [2016] ; Matter of Desirea F. [Angela F.] , 136 A.D.3d 1074, 1079 n 1, 25 N.Y.S.3d 385 [2016] ; Matter of Dakota F. [Angela F.] , 110 A.D.3d 1151, 1152, 974 N.Y.S.2d 594 [2013], lv denied 22 N.Y.3d 1015, 981 N.Y.S.2d 346, 4 N.E.3d 356 [2013] ; Matter of Dakota F. [Angela F.] , 92 A.D.3d 1097, 1098, 939 N.Y.S.2d 586 [2012] ).¹ The children were removed from the mother's care in December 2007 and, in 2008, were once again adjudicated to be neglected. The children were initially placed into several different foster homes but, since 2011, they have resided continuously with their current foster parents, who presently reside in Iowa. As relevant here, in 2010, respondent commenced proceedings seeking to terminate the mother's parental rights due to mental illness (see Social Services Law § 384–b [4][c] ). In September 2011, following a hearing, Family Court (Potter, J.) adjudicated the mother to be mentally ill and unable to parent her children and terminated her parental rights. The mother, in turn, has not seen the children since September 2011. In October 2013, this Court reversed Family Court's orders terminating the mother's parental rights and dismissed the underlying petitions ( Matter of Dakota F. [Angela F.], 110 A.D.3d at 1152, 974 N.Y.S.2d 594 ), effectively reinstating such rights and restoring her to the position she was in prior thereto. The mother then commenced the subject Family Ct Act article 6 and article 10 proceedings seeking to, among other things, reestablish visitation with the children. In 2014, upon the mother's request for any contact with the children pending a hearing on her petitions, Family Court (Morris, J.) denied such request based upon the fact that it had been two years since the mother had last seen the children. Ultimately, in August 2015, following an inexplicably protracted hearing, Family Court dismissed the mother's petitions on the merits.

The mother appealed and this Court once again reversed, finding, among other things, that Family Court had improperly shifted the burden to the mother to prove that visitation was in the child's best interests and that the record otherwise failed to demonstrate the mother's mental health issues were of such severity that visitation with the children would be detrimental or harmful to their welfare ( Matter of Angela F. v. St. Lawrence County Dept. of Social Servs. , 146 A.D.3d at 1246–1248, 45 N.Y.S.3d 691 ). The matter was then remitted to Family Court to conduct a new hearing, before a new judge, on the issue of whether visitation or other contact with the children would be detrimental or harmful to their welfare ( id. at 1248, 45 N.Y.S.3d 691 ). Upon remittal, following a hearing held over the course of eight days in February and March 2017, including a Lincoln hearing, in a 54–page decision rendered in November 2017, Family Court (Richards, J.) dismissed the mother's petitions, determining that visitation would be harmful and detrimental to the mental, emotional and psychological health and well-being of the children. The mother appeals.

Initially, we are unpersuaded that the mother's waiver of her right to counsel was not knowing, voluntary and intelligent. As relevant there, "[t]he decision to permit a party who is entitled to counsel to proceed pro se must be supported by a showing on the record of a knowing, voluntary and intelligent waiver of the right to counsel" ( Matter of Anthony K. , 11 A.D.3d 748, 749, 783 N.Y.S.2d 418 [2004] [citations omitted]; see Matter of Mitchell WW. [Andrew WW.] , 74 A.D.3d 1409, 1411, 903 N.Y.S.2d 553 [2010] ). "[T]he hearing court must perform a searching inquiry to determine whether a party is aware of the dangers and disadvantages of proceeding without counsel, which might include inquiry into the party's age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver" ( Matter of Hensley v. DeMun , 163 A.D.3d 1100, 1102, 81 N.Y.S.3d 282 [2018] [internal quotation marks and citations omitted]; see Matter of Madison County Support Collection Unit v. Feketa , 112 A.D.3d 1091, 1093, 977 N.Y.S.2d 434 [2013] ). Upon remittal, Family Court confirmed that the mother was electing to appear pro se. The mother verified that she was accompanied by standby counsel throughout her prior proceedings and that she had asked for and received his advice and counsel on multiple occasions. The mother also acknowledged that she was aware that she would not be treated differently than other attorneys in the proceeding and that she had the right to consult with her standby counsel at any time.² Moreover, despite this Court having raised concerns in our prior decisions in related matters with respect to the mother's continuing election to proceed pro se (see Matter of Desirea F. [Angela F.] , 137 A.D.3d at 1520, 28 N.Y.S.3d 490 ; Matter of Desirea F. [Angela F.] , 136 A.D.3d at 1077, 25 N.Y.S.3d 385 ), the mother has nevertheless continued to represent herself for a number of years, and it is apparent from the record that, although having certain diagnosed mental health issues, she was sufficiently competent and able to engage in legal arguments, render appropriate objections to evidence, cross-examine respondent's witnesses and otherwise effectively advocate on behalf of her case (see Matter of Anthony K. , 11 A.D.3d at 749–750, 783 N.Y.S.2d 418 ). Accordingly, upon review, we find no error in Family Court permitting the mother to proceed pro se, with the aid of standby counsel.

Turning to the merits, it is axiomatic that visitation with a noncustodial parent is presumed to be in a child's best interests (see Matter of Richard GG. v. M. Carolyn GG. , 169 A.D.3d 1169, 1171, 94 N.Y.S.3d 644[2019] ; Matter of Alan U. v. Mandy V. , 146 A.D.3d 1186, 1188, 44 N.Y.S.3d 801 [2017] ). However, this presumption may be overcome where the party opposing visitation sets forth "compelling reasons and substantial evidence that such visitation would be detrimental or harmful to the child's welfare" ( Matter of Lillian SS. [Brian SS.] , 146 A.D.3d 1088, 1095, 45 N.Y.S.3d 640 [2017], lvs denied 29 N.Y.3d 992, 919, 53 N.Y.S.3d 609, 75 N.E.3d 1170 [2017] ; see Matter of Dharamshot v. Surita , 150 A.D.3d 1436, 1437, 54 N.Y.S.3d 735 [2017] ; Matter of Victoria X. , 34 A.D.3d 1117, 1118, 824 N.Y.S.2d 477 [2006], lv denied 8 N.Y.3d 806, 832 N.Y.S.2d 488, 864 N.E.2d 618 [2007] ). "Although not determinative, the expressed wishes of the children are some indication of what is in their best interests, considering their age, maturity and potential to be influenced" ( Matter of Heather SS. v. Ronald SS. , 173 A.D.3d 1271, 1272, 103 N.Y.S.3d 621 [2019] [internal quotation marks and citations omitted]; see Matter of Manell v. Manell , 146 A.D.3d 1107, 1108–1109, 46 N.Y.S.3d 690 [2017] ). "The propriety of visitation is left to the sound discretion of Family Court, guided by the best interests of the children, and its decision will not be disturbed where it is supported by a sound and substantial basis in the record" ( Matter of Heather SS. v. Ronald SS. , 173 A.D.3d at 1272, 103 N.Y.S.3d 621 [internal quotation marks, brackets and citations omitted] ).

At the fact-finding hearing, respondent offered the testimony of Michael Small, a clinical neuropsychologist, who conducted a court-ordered comprehensive neuropsychological evaluation of the mother over the course of three days in July and September 2016, including a home visit and collateral interviews with the mother's husband and a former treatment provider, and issued a corresponding report in January 2017. Small diagnosed the mother as suffering from, among other things, a personality disorder with features of five separate personality disorders, predominantly borderline, paranoid, schizotypal, narcissistic and antisocial features. Small explained that a personality disorder "is a long-standing pervasive condition that disrupts a person's thinking, their emotional self-regulation, their ability to conduct relationships, their...