Matter of Lillian SS. , 45 N.Y.S.3d 640 ( 2017 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 12, 2017 520159
________________________________
In the Matter of LILLIAN SS.
and Another, Alleged to be
Neglected Children.
ULSTER COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Respondent;
BRIAN SS.,
Appellant.
(Proceeding No. 1.)
________________________________ MEMORANDUM AND ORDER
In the Matter of LILLIAN SS.
and Another, Alleged to be
Neglected Children.
ULSTER COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Respondent;
KERI SS.,
Appellant.
(Proceeding No. 2.)
________________________________
Calendar Date: November 15, 2016
Before: Garry, J.P., Egan Jr., Devine, Clark and Mulvey, JJ.
__________
Betty J. Potenza, Highland, for Brian SS., appellant.
John A. Cirando, Syracuse, for Keri SS., appellant.
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Heather D. Harp, Ulster County Department of Social
Services, Kingston, for respondent.
Daniel Gartenstein, Kingston, attorney for the child.
Marian B. Cocose, Bearsville, attorney for the child.
__________
Egan Jr., J.
Appeals from two orders of the Family Court of Ulster
County (McGinty, J.), entered November 6, 2014, which, among
other things, granted petitioner's applications, in two
proceedings pursuant to Family Ct Act article 10, to adjudicate
the subject children to be neglected.
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 temporary orders of protection prohibiting the
father from having any contact with the subject children and
1
During the course of the risk classification hearing, the
father denied having committed any sex offenses – contending that
he "made up [the] story" underlying the 1996 conviction and that
the 1999 conviction stemmed from a simple probation violation.
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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 offender
treatment and, as to the mother, her decision to "turn[] a blind
eye" to the father's offenses and to "[choose] her relationship
with [the father] over the safety of her children." The father
thereafter appealed from Family Court's fact-finding order, and
this Court affirmed (118 AD3d 1079 [2014], lv dismissed 24 NY3d
936 [2014]).
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
persistent 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
2
The orders of protection were extended several times
throughout the course of these proceedings, but certain of those
subsequent orders afforded the father either supervised
visitation with the children or supervised telephone or Skype
contact with Lee.
3
Counsel for the mother indicated, however, that she would
like to see more visitation between the father and the children.
4
Inasmuch as Lee reached the age of majority during the
pendency of this appeal, Family Court no longer has jurisdiction
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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 Family Ct Act § 1012 (f) (i) when a parent
knew or should have known of circumstances which required action
in order to avoid actual or potential impairment of the child and
failed to act accordingly. Determining whether a parent
exercises the requisite minimum degree of care is evaluated by
asking whether, under the circumstances, a reasonable and prudent
parent would have so acted. In this regard, a finding of neglect
does not require actual injury or impairment, but only an
imminent threat that such injury or impairment may result"
(Matter of Warren RR. [Brittany Q.], 143 AD3d 1072, 1076 [2016]
[internal quotation marks and citations omitted]; see Matter of
Evelyn EE. v Ayesha FF., 143 AD3d 1120, 1125 [2016]; Matter of
Emmett RR. [Scott RR.], 134 AD3d 1189, 1190-1191 [2015]).
over any custody or visitation issues relative to him (see Matter
of Roth v Messina, 116 AD3d 1257, 1258 n 2 [2014]) but, in light
of the consequences that could flow therefrom, the mother's
challenge to the adjudication of neglect as to that child remains
properly before us (cf. Matter of Shay-Nah FF. [Theresa GG.], 106
AD3d 1398, 1399 n 1 [2013], lv denied 21 NY3d 863 [2013]).
5
The mother's and the father's requests for a stay pending
appeal were denied by a Justice of this Court. Additionally,
during the pendency of these appeals, petitioner commenced
separate proceedings against the mother and the father, alleging
that each of them had violated various provisions of the
respective dispositional orders. Neither the mother nor the
father appeared at the scheduled fact-finding hearing and, at the
conclusion thereof, Family Court, among other things, found the
parents to be in willful violation of the prior dispositional
orders, committed each of them to the Ulster County Jail for a
period of six months and continued their placement under the
supervision of petitioner until April 19, 2017.
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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 incarcerated 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 danger 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 her household, especially
with respect to her infant daughter, we have no quarrel with
Family Court's finding that the mother neglected the subject
children (see Matter of Warren RR. [Brittany Q.], 143 AD3d at
1076; Matter of Cashmere S. [Rinell S.], 125 AD3d 543, 544
[2015], lv denied 26 NY3d 909 [2015]; see also Matter of Destiny
EE. [Karen FF.], 90 AD3d 1437, 1443-1444 [2011], lv dismissed 19
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NY3d 856 [2012]).6
We turn now to the father's claim that he was denied the
right to counsel during the course of the dispositional hearing,
which commenced on April 3, 2013. On the fourth day of the
hearing (September 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 argues, Family Court denied him his right
6
In reaching this result, we are mindful that, given the
testimony adduced at the fact-finding hearing, the finding of
neglect as to Lee necessarily is derivative in nature. The case
law makes clear, however, that "evidence of the abuse of one
child can suffice to establish derivative abuse or neglect when
the conduct at issue evidences fundamental flaws in the
respondent's understanding of the duties of parenthood so
profound as to place any child in his or her care at substantial
risk of harm" (Matter of Joanne II. [Thomas II.], 100 AD3d 1204,
1205 [2012] [internal quotation marks, brackets and citations
omitted]). In light of the mother's entrenched denial of the
father's offenses, we are satisfied that this standard was met
here and, as such, a finding of derivative neglect as to Lee is
warranted.
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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
choice" (Matter of Ashley D., 268 AD2d 803, 805 [2000] [citations
omitted], lv denied 94 NY2d 763 [2000]; see Matter of Daniel K.L.
[Shaquanna L.], 138 AD3d 743, 745 [2016]; cf. Matter of Zulme v
Maehrlein, 133 AD3d 608, 609 [2015]; Matter of Ryan v Alexander,
133 AD3d 605, 607 [2015]; Matter of DeMichiel v DeMichiel, 66
AD3d 894, 895 [2009], lv denied 14 NY3d 704 [2010]). To that
end, "[a]n indigent party is entitled to new assigned counsel
only upon a showing of good cause for substitution" (Matter of
Daniel K.L. [Shaquanna L.], 138 AD3d at 745; see Matter of Blake
T.L. [Robert L.], 141 AD3d 525, 526 [2016], lvs denied 28 NY3d
906, 907 [2016]; Matter of Zulme v Maehrlein, 133 AD3d at 609;
Matter of Brendan N. [Arthur N.], 79 AD3d 1175, 1178 [2010], lv
dismissed 14 NY3d 934 [2010], lvs denied 15 NY3d 701 [2010], 16
NY3d 702, 735 [2011]). "In determining whether good cause
exists, a trial court must consider the timing of the . . .
request, its effect on the progress of the case and whether
present counsel will likely provide . . . meaningful assistance.
Good cause determinations are necessarily case-specific and
therefore fall within the discretion of the trial court" (People
v Linares, 2 NY3d 507, 510 [2004]; see People v Orminski, 108
AD3d 864, 865 [2013], lv denied 22 NY3d 958 [2013]). Notably,
"[s]ubstitution of counsel is an instrument designed to remedy
meaningful impairments to effective representation, not to reward
truculence with delay" (People v Linares, 2 NY3d at 512). For
that reason, when confronted with a request to change retained or
assigned counsel, the trial court must insure that such request
"does not serve to delay or obstruct the . . . proceedings"
(People v Orminski, 108 AD3d at 865 [internal quotation marks and
citation omitted]).
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
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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]).
We reach a similar conclusion with respect to the denial of
the father's request for an adjournment. Although Family Ct Act
§ 1048 (a) permits the court to adjourn a dispositional hearing
"for good cause shown," such determination lies within "the sound
discretion of the hearing court upon a balanced consideration of
all relevant factors" (Matter of Natalia T. [Michael T.], 115
AD3d 966, 966 [2014]). Here, given the length of time that
elapsed between the scheduled hearing dates, the father's
corresponding failure to seek an adjournment – or attempt to
obtain new counsel – in a timely fashion and the absence of good
cause for the substitution of counsel in the first instance, we
cannot say that Family Court abused its discretion in denying the
father's request for an adjournment (see Matter of Sara KK., 226
AD2d 766, 767 [1996], lv denied 88 NY2d 808 [1996]; compare
Matter of Stephen L., 2 AD3d 1229, 1231-1232 [2003]).
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
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to answer Family Court directly,7 insisting instead that he be
given time to obtain counsel of his own choosing. 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 have 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
delay the already protracted proceedings by demanding that he be
assigned counsel of his choosing. Further, Family Court was not
required to follow a specific formula in ascertaining the
voluntariness of the father's decision to proceed pro se; rather,
the record need only "demonstrate that the [father] was aware of
the dangers and disadvantages of proceeding without counsel"
(Matter of Ryan v Alexander, 133 AD3d at 606 [internal quotation
marks and citations omitted]; see Matter of Graham v Rawley, 140
AD3d 765, 767 [2016], lv dismissed and denied 28 NY3d 955 [2016])
and that he was competent to make that decision (see Matter of
Graham v Rawley, 140 AD3d at 767). Upon reviewing the colloquy
between the father and Family Court on this point, wherein Family
Court apprised the father of the perils and pitfalls of
proceeding pro se, we are satisfied that the father knowingly,
intelligently and voluntarily waived his right to counsel.
7
Contrary to the representations made by counsel during
oral argument, the father did not repeatedly refuse to proceed
pro se. Rather, the father refused to choose between proceeding
with assigned counsel or proceeding pro se – opting instead to
continue to insist that he be provided with counsel of his own
choosing.
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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
licensed psychologist, to testify at the dispositional hearing.
After reviewing the mother's and the father's trial testimony,
together with various test results, assessments and evaluations,
Arp was of the view that the father was "at a moderate risk of
offending, of recidivisim" and that he required sex offender
treatment; without such treatment, Arp opined, the father lacked
any awareness of "his triggers or his offense cycle" or any
concept of "safety planning" and, as such, continued to pose "a
danger to prepubescent girls." Specifically, Arp testified that,
given the father's history of sex offenses with infant girls and
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his persistent denial of his conduct, she would have serious
concerns regarding the father's risk of offending against
Lillian.8 Such testimony, in our view, fully supports Family
Court's finding that visitation between the father and Lillian
would not be in the child's best interests. To the extent that
Christopher Farrell, the clinical coordinator of sex offender
services for the Ulster County Probation Department, offered
testimony to the contrary, any conflict in the testimony
presented a factual and credibility issue for Family Court to
resolve (see generally Matter of Shana SS. v Jeremy TT., 111 AD3d
1090, 1092 [2013], lv denied 22 NY3d 862 [2014]).
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,
8
When questioned as to the possibility of supervised
visitation for the father, Arp testified that such supervision
should be provided by an appropriate agency or someone who, in
addition to being able to be objective, had been trained to look
for certain red flags – such as whispering or lap sitting during
visits. According to Arp, the mother would not be an appropriate
supervisor for such visits "given her level of denial."
9
Counsel for the respective parties advised this Court at
oral argument that neither the mother nor the father currently
reside in New York – much less in Ulster County. According to
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Family Court's dispositional order entered with regard to the
mother must be modified accordingly. Respondents' 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.
ENTER:
Robert D. Mayberger
Clerk of the Court
counsel, the mother and the children reside in Pennsylvania, and
the father resides in North Carolina. That said, Family Court
retains jurisdiction over these proceedings, and counsel for
petitioner indicated that petitioner has retained responsibility
for supervising the parents' compliance with the dispositional
orders.