OTROSINKA, JEREMY D. v. HAGEMAN, CHRISTIAN ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1031
CAF 15-00547
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND CURRAN, JJ.
IN THE MATTER OF JEREMY D. OTROSINKA,
PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
CHRISTIAN HAGEMAN, RESPONDENT-RESPONDENT.
ELIZABETH CIAMBRONE, BUFFALO, FOR PETITIONER-APPELLANT.
DAVID C. SCHOPP, ATTORNEY FOR THE CHILDREN, THE LEGAL AID BUREAU OF
BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL).
Appeal from an order of the Family Court, Erie County (Mary G.
Carney, J.), entered March 18, 2015 in a proceeding pursuant to Family
Court Act article 6. The order, among other things, dismissed the
petition of petitioner seeking visitation with the parties’ children.
It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the second ordering
paragraph and as modified the order is affirmed without costs.
Memorandum: Petitioner father appeals from an order dismissing
his petition for visitation and imposing two conditions precedent to
any attempt by him to file another petition. Contrary to the father’s
contention, Family Court did not err in granting the motion of the
Attorney for the Children to dismiss the petition. At the time the
father filed his petition, he was incarcerated in Michigan, and he
admitted that he had at least 10 more years of incarceration before he
would be released. Prior to his incarceration, the children had been
removed from his care in August 2009 while a neglect proceeding was
commenced against him. The father ultimately admitted that he
“engaged in inappropriate behavior” with the children’s older half
sister, and an order of protection preventing any communication
between the father and the children expired in February 2012. Even
after that order expired, the father had little to no contact from the
children. We thus conclude that, despite the presumption in favor of
visitation (see Matter of Cierra L.B. v Richard L.R., 43 AD3d 1416,
1416-1417), “[a]n evidentiary hearing was not required herein because
it is clear from the record that the court possessed sufficient
information to render an informed determination that was consistent
with the child[ren]’s best interests . . . , particularly in view of
the lengthy period of [the father’s] incarceration . . . , [and] the
virtually nonexistent previous relationship of petitioner with his
[children]” following their removal from his custody (Matter of
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Marmolejo v Calabrese, 23 AD3d 1122, 1123 [internal quotation marks
omitted]; see Matter of Piwowar v Glosek, 53 AD3d 1121, 1122; Matter
of Bogdan v Bogdan, 291 AD2d 909, 909).
Contrary to the father’s further contention, his constitutional
right to due process was not violated. “It is well established that
prisoners do not have an absolute constitutional right to be present
in their own civil actions” (Cook v Boyd, 881 F Supp 171, 175, affd 85
F3d 611, cert denied 519 US 891, reh denied 519 US 1024; see Matter of
Giovannie M.-V., 35 AD3d 1244, 1245; Matter of Danielle M., 26 AD3d
748, 748-749, lv denied 7 NY3d 703; see also Civil Rights Law § 79
[2]). Nevertheless, it is also recognized that, “[u]nlike a basic
civil action claim . . . , a person has a fundamental liberty interest
in maintaining a parental relationship with his [or her] children”
(Cook, 881 F Supp at 175). As a result, “[d]ue process must thus be
afforded to an individual who is having his [or her] parental rights
challenged” (id.). We conclude that the father was afforded the
requisite due process inasmuch as he was represented by an attorney
who participated in the proceedings (see id.; see also Matter of
Raymond Dean L., 109 AD2d 87, 90). We note that the court attempted
to secure the father’s presence electronically at the relevant court
appearances, but on one occasion was unable to do so when prison
officials failed to answer any of the four calls placed by the court
to the facility (see Matter of Earl B.G. v Shenette T., 84 AD3d 672,
673). Finally, we also note that the father was not excluded from
participation in any hearing, inasmuch “as no hearing was held”
(Matter of Mary GG. v Alicia GG., 106 AD3d 1410, 1411, lv denied 21
NY3d 863).
Contrary to the father’s contention, he was not denied effective
assistance of counsel. Although the father’s attorney was unable to
appear in court for a few of the initial appearances owing to a
conflict in her schedule and her maternity leave, she obtained stand-
in counsel and appeared on his behalf to argue in opposition to the
motion to dismiss. The attorney established that the father had
previously lived with the children, wrote to them frequently, and had
once received a response from one of the boys. That the attorney’s
arguments in opposition to the motion and in favor of a hearing were
unsuccessful does not establish that the attorney’s representation was
less than meaningful. Care must be taken “to distinguish between true
ineffectiveness and losing tactics or unsuccessful efforts in
advancing appropriate [arguments]” (People v Stultz, 2 NY3d 277, 283,
rearg denied 3 NY3d 702; see Matter of Amanda M., 28 AD3d 813, 815).
“The record offers no evidence that counsel failed to communicate with
the father or that the father provided counsel with any relevant facts
other than those alleged in the original petition” (Matter of Perry v
Perry, 52 AD3d 906, 907, lv denied 11 NY3d 707). Under the
circumstances of this case, we conclude that the “attorney provided
meaningful and competent representation” (Matter of Ayen v Sain, 89
AD3d 1440, 1440 [internal quotation marks omitted]; see Matter of
Secrist v Brown, 83 AD3d 1399, 1400, lv denied 17 NY3d 706).
Finally, we agree with the father that the court erred in sua
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sponte imposing conditions restricting him from filing new petitions.
It is well settled that “[p]ublic policy mandates free access to the
courts” (Matter of Shreve v Shreve, 229 AD2d 1005, 1006), but “ ‘a
party may forfeit that right if she or he abuses the judicial process
by engaging in meritless litigation motivated by spite or ill will’ ”
(Matter of McNelis v Carrington, 105 AD3d 848, 849, lv denied 21 NY3d
861; see Matter of Pignataro v Davis, 8 AD3d 487, 489; Shreve, 229
AD2d at 1006). Here, however, there is no basis in the record from
which to conclude that the father had engaged in meritless, frivolous,
or vexatious litigation, or that he had otherwise abused the judicial
process (see Matter of Price v Jenkins, 99 AD3d 915, 915; Matter of
Casolari v Zambuto, 1 AD3d 1031, 1031; see also Matter of Wieser v
Wieser, 83 AD3d 950, 950-951). We thus modify the order by vacating
the second ordering paragraph.
Entered: November 10, 2016 Frances E. Cafarell
Clerk of the Court