W., LATONIA, MTR. OF ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1072
CAF 15-00375
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
IN THE MATTER OF LATONIA W., NEIGHYA W.,
AND CECELIA M.W.
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MONROE COUNTY DEPARTMENT OF HUMAN SERVICES, MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;
ANTHONY W., RESPONDENT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF
COUNSEL), FOR RESPONDENT-APPELLANT.
MICHAEL E. DAVIS, COUNTY ATTORNEY, ROCHESTER, FOR
PETITIONER-RESPONDENT.
TANYA J. CONLEY, ATTORNEY FOR THE CHILDREN, ROCHESTER.
Appeal from an order of the Family Court, Monroe County (Dandrea
L. Ruhlmann, J.), entered January 23, 2015 in a proceeding pursuant to
Social Services Law § 384-b. The order, inter alia, terminated
respondent’s parental rights.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: In a proceeding pursuant to Social Services Law
§ 384-b, respondent father appeals from an order that, inter alia,
revoked a suspended judgment and terminated his parental rights with
respect to the subject children. Contrary to the father’s contention,
Family Court did not abuse its discretion in denying his requests to
adjourn the hearing on the petition seeking to revoke the suspended
judgment.
It is well settled that “[t]he grant or denial of a motion for
‘an adjournment for any purpose is a matter resting within the sound
discretion of the trial court’ ” (Matter of Steven B., 6 NY3d 888,
889, quoting Matter of Anthony M., 63 NY2d 270, 283). With respect to
the father’s contention that the court erred in denying his request to
adjourn the hearing so he could contact unnamed witnesses, the father
“failed to demonstrate that the need for the adjournment to subpoena
the witness[es] was not based on a lack of due diligence on the part
of [him] or [his] attorney” (Matter of Sophia M.G.-K. [Tracy G.-K.],
84 AD3d 1746, 1747; see Steven B., 6 NY3d at 889).
Contrary to the father’s further contention, the court did not
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CAF 15-00375
abuse its discretion in denying his repeated requests to adjourn the
hearing to permit him to retain counsel or to permit his allegedly
retained counsel to appear. It is well settled that “[t]he granting
of an adjournment [to obtain new counsel] is addressed to the sound
discretion of the court . . . In making such a determination, the
court must undertake a balanced consideration of all relevant factors”
(Matter of Sicurella v Embro, 31 AD3d 651, 651, lv denied 7 NY3d 717;
see Matter of Cabral v Cabral, 61 AD3d 863, 863-864; see generally
Anthony M., 63 NY2d at 283). Furthermore, with respect to a criminal
proceeding involving a similar right to counsel as the father is
afforded in this permanent neglect proceeding (see generally Matter of
Ella B., 30 NY2d 352, 356-357), the Court of Appeals has “held that a
defendant may not use the right to counsel of choice ‘as a means to
delay judicial proceedings . . . ’ [Thus,] appellate courts must
recognize ‘a trial court’s wide latitude in balancing the right to
counsel of choice against the needs of fairness and against the
demands of its calendar’ ” (People v O’Daniel, 24 NY3d 134, 138; see
United States v Gonzalez–Lopez, 548 U.S. 140, 152). Here, when the
father initially sought an adjournment in the midst of the hearing to
retain new counsel, the court indicated that the father could hire an
attorney but also said that counsel must appear at the next adjourned
date. Although the father indicated on the next date that he had
retained an attorney, no attorney appeared or contacted the court, and
the court then denied the father’s request for a further adjournment.
Under the circumstances presented, including the six-year period
during which the permanent neglect proceeding remained pending and the
subject children’s status remained unsettled, and in light of the
father’s repeated groundless requests to adjourn the hearing, we
cannot conclude that the court erred in determining that the father’s
request was merely another delaying tactic, nor do we conclude that it
abused its discretion in denying the request when the father’s
allegedly retained counsel did not appear. Finally, we note that the
father was represented by assigned counsel throughout the proceedings,
including during the hearing at issue (cf. Matter of Stephen L. [June
L.], 2 AD3d 1229, 1231-1232).
Entered: November 18, 2016 Frances E. Cafarell
Clerk of the Court